By John Töns
The Facebook ‘scandal’ regarding the use or abuse of private data has dominated news headlines for the past few weeks, yet there really is nothing new here. We have been – or should have been – aware that the various ‘free’ services offered do use our data to pay for that service. How often have you discovered that for weeks after you have searched for something on the internet you will see advertisements for that product pop up on your screen? It is ubiquitous, and we have become quite inured to it. So, we should not have been surprised that Facebook has been somewhat cavalier with our data. Whether we have a legal redress will be the next battle – what is the legal force of that rather densely worded legal agreement that we agreed to when we joined Facebook or downloaded any of the many apps that appear to dominate our lives?
The digital age deals with an old problem, albeit it is now a problem on steroids. The problem is simply that as society changes the law needs to catch up with those changes. It does this either through parliament or case law. If the pace of change is reasonably slow playing catch up is not a major problem, but when the pace quickens more people can be caught by the unanticipated and undesirable consequences of an innovation. In the digital age we find that millions of individuals have unwittingly been sucked into the tarpits that litter the digital world.
Yet there is a possible way out. Throughout the Western World we subscribe to one version or other of liberal democratic political theory. Not to be confused with parties that may have adopted that moniker it is essentially a political theory that good government means that the benefits and burdens arising out of social co-operation are distributed equally or if not equally at least fairly.
John Rawls was a preeminent thinker in that liberal democratic tradition. He presented us with a political conception of justice. Included in his work was the idea of public reason. Essentially, public reason argues that any justification for our laws and regulations need to be based on the idea that they are consistent with the fundamental interests of democratic citizens as free and equal moral persons.
Rawls’s aim was to bring ‘together certain general features of any society that it seems one would, on due reflection, wish to live in and want to shape our interests and character’. Throughout his life he referred to this as ‘justice as fairness’. The content of public reason for Rawls was shaped by the two principles of justice on which a fair society can be built.
So how can this help with the Facebook problem, or more precisely how can we avoid problems like Facebook recurring? As it stands it is an open question whether any individual has any right of redress against Facebook for the indiscriminate mining of their data. But we may be able to use the digital technology to prevent such problems in the future.
We are aware that there are unanticipated consequences from any initiative, no matter how well-meaning and well-intentioned some of those consequences can be good some bad. But we now have the technology that may enable us to test for those unintended consequences. To do this we need to use an algorithm to test a law or innovation to determine whether there are any consequences that can flow from the innovation that are counter to the principle of public reason. That tool to be in the form open access software so that anyone can use it. In addition, governments would need to do one more thing. It would need to pass legislation that enables people to get legal redress if the company could reasonably have anticipated that their idea had the potential to violate the principle of public reason.
Why is this likely remain yet another fantasy? Applying public reason criteria will not be limited to corporations. Governments may discover that some of their most cherished pieces of legislation will also fall foul of this criterion. The idea of giving so much power to citizens over their elected representatives may well be a bridge too far.
