Information Ethics

Privacy, Property, and Power

Adam Daniel Moore

• Publisher: University of Washington Press
• Year: 2012
• ISBN:
  9780295803661
• Topic: Computer Science
• Subtopic: Information Technology

This anthology focuses on the ethical issues surrounding information control in the broadest sense. Anglo-American institutions of intellectual property protect and restrict access to vast amounts of information. Ideas and expressions captured in music, movies, paintings, processes of manufacture, human genetic information, and the like are protected domestically and globally.

The ethical issues and tensions surrounding free speech and information control intersect in at least two important respects. First, the commons of thought and expression is threatened by institutions of copyright, patent, and trade secret. While institutions of intellectual property may be necessary for innovation and social progress they may also be detrimental when used by the privileged and economically advantaged to control information access, consumption, and expression. Second, free speech concerns have been allowed to trump privacy interests in all but the most egregious of cases.

At the same time, our ability to control access to information about ourselves--what some call "informational privacy"--is rapidly diminishing. Data mining and digital profiling are opening up what most would consider private domains for public consumption and manipulation.

Post-9/11, issues of national security have run headlong into individual rights to privacy and free speech concerns. While constitutional guarantees against unwarranted searches and seizures have been relaxed, access to vast amounts of information held by government agencies, libraries, and other information storehouses has been restricted in the name of national security.

Introduction

ADAM D. MOORE and KRISTENE UNSWORTH

Information ethics is a relatively new area of study comprised of several distinct yet interrelated disciplines including applied ethics, intellectual property, privacy, free speech, and societal control of information. The various issues addressed within these disciplines, along with the rise of technology-based information control, have lead many to understand these domains as interconnected. For example, when a photographer captures the image of a nude girl running from a napalm attack, questions arise that are related to each of these areas. Does the photographer own the picture in question? Does the girl have a privacy right that overrides the photographer's ownership claims? Given that important information might be contained in the photograph, do free speech concerns play a role in deciding the moral issues surrounding the publication of the picture? Finally, if there were some reason to suppress the publication of the photograph independent of privacy—perhaps publication would turn public sentiment against some governmental interest, for example—would such interests provide a compelling justification for suppression? Obviously, the justifications and answers we give in one area of study will impact the arguments and policy decisions in other areas.

Needless to say, developing answers to these questions is philosophically challenging. This anthology was put together so that a number of important articles centering on the normative issues surrounding information control—in the broadest sense—could be found in one work. As we move further into the information age, which is marked by the shift from an industrial economy to an information-based economy, clarity is needed at the philosophical level so that morally justified policies and institutions can be adopted.

Information ethics is related to, but not the same as, computer ethics or ethics and information technology. Computer ethics includes topics such as value sensitive design and computers as social actors. The former considers the ethical dimensions of values imposed on users via the user interface while the latter examines the ways in which computers play social roles. Neither of these issues is directly related to information ethics. Moreover, there are areas of information ethics that don't properly fall into the domain of computer ethics or ethics and information technology. For example, when government agents search an apartment, computers and information technology may play no role in the search or the ethical issues surrounding the event.

Before providing a summary of the articles included in this volume, we would like to give a brief overview of the different domains of inquiry that make up information ethics: applied ethics, intellectual property, privacy, free speech, and societal control of information. Each of these specialized areas of study has its own historical context. We will take them up in turn.

Moral Theory and Applied Ethics

Although the readings in Part I provide a general overview of ethical theory and a framework for analysis, we would like to address the relationship between religion and ethical claims—an issue that is only briefly considered in our readings. Ethics as an area of philosophical inquiry has been around for more than two thousand years. Even so, non-religious based ethics is still relatively new and applied ethics—for example medical ethics, business ethics, and environmental ethics—has only gained prominence in the last two decades or so.

The Euthyphro Objection to Theological Ethics

Despite the fact that the Euthyphro objection to theological ethics was formulated by Socrates at the time of his trial and execution in 399 BC, we have only in the last two hundred years started disentangling ethical claims from religious ones. The modern version of the Euthyphro objection to theological ethics goes as follows: First, consider the view which holds that actions are morally correct if and only if they are commanded by God and wrong if and only if they are forbidden by God; there is nothing beyond God's commandments that makes an action morally right or wrong. “Well,” paraphrasing Socrates, “is an action right because God commands it or does God command an action because it is right?” More formally, Is X right because God commands X or does God command X because X is right? Suppose we grasp the first part of the dilemma and claim that X is right because God commands X. We may then ask a seemingly innocent question: Does God have reasons for commanding what he does? If He does, then it is these reasons that make an action right or wrong and not His mere commandments and we find ourselves grasping the second part of the dilemma. If He has no reasons, then morality is arbitrary and whimsical.

To put the point another way, if X is right simply and for no other reason than God commanded X and if God were to command that we each cause as much suffering to other human beings as possible, then we ought morally to get on with the business of causing suffering. It does no good to say that God would never command such a thing if we are grasping the first horn of the dilemma—if X is right simply and for no other reason than God commanded X. What we want to say is that God would not command such a thing because causing as much suffering to other human beings as possible would be morally wrong. And this is just to grasp the second horn of the dilemma—God commands X because X is right, God forbids Y because Y is wrong. If so, then morality exists independently from God and is perhaps knowable via reason and argumentation. Notice as well, that we do not have to determine which God exists or what He commands, wills, or forbids to engage in moral reasoning.

Professional philosophers have generally accepted the reasoning that surrounds the Euthyphro dilemma, understanding that moral rightness and wrongness, if they exist, are a matter of reason and argument. Sadly, the Euthyphro dilemma is not widely understood. Thus, while the study of ethical principles is quite old, inquiry into non-religious based normative ethical theory is relatively new.

Normative Ethical Theory

Normative ethical theory has been traditionally broken into two domains—theories of the good value or theories of the good, and theories of obligation or theories of right. A theory of the good concerns the moral evaluation of agents, states of affairs, intentions, and the like as good, bad, valuable, and disvaluable. A theory of right concerns the moral rightness or wrongness of actions and policies. In general, theories of the good try to answer the question “What is valuable?” while theories of the right try to answer the question “What makes an action right or wrong?” How these two domains connect or interact determines the type of moral theory in question.

Axiologists claim that the good is prior to, more fundamental than, and determines the right. That is, we know what we ought to do by appealing to value and nothing else. The most prominent example of an axiological theory is consequentialism, which holds that moral rightness and wrongness depends on the value or disvalue of consequences. John Stuart Mill (Chapter 3) is a notable example of a consequentialist. Deontological theories, on the other hand, hold that there is more to moral rightness and wrongness than considerations of value. Immanuel Kant (Chapter 4), probably the most famous deontologist, argued that considerations of value were irrelevant to determining rightness. Rightness, for the deontologist, is prior to, more fundamental than, and determines the good.

Without establishing the “correct” moral theory and the reasons and arguments that generate moral oughts, applied ethicists have made progress by asking questions about what would be the case if this or that normative ethical theory turned out to be correct. Moreover, although there are numerous competing normative ethical theories, there may also be broad areas of agreement—and within these areas advances may be made.

Intellectual Property¹

Although one of the first known references to intellectual property protection dates from 500 BC when chefs in the Greek colony of Sybaris were granted year long monopolies over particular culinary delights, our modern analysis of the normative, political, and legal questions related to intellectual property is tied to the English system that began with the Statute of Monopolies (1624) and the Statute of Anne (1709).² The Statute of Monopolies, considered the basis of modern British and American patent systems, granted fourteen-year monopolies to authors and inventors and ended the practice of granting rights to “non-original/new” ideas or works already in the public domain.

Literary works remained largely unprotected until the arrival of Gutenberg's printing press in the fifteenth century. Even then there were few true copyrights—issued most were grants, privileges, and monopolies.³ The Statute of Anne (1710) established the first modern system of copyright protection. The statute began, “Whereas printers, booksellers, and other persons have lately frequently taken the liberty of printing, reprinting, and publishing books without the consent of the authors and proprietors…to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write use books, be it enacted…” The law gave protection to the author by granting fourteen-year copyrights, with a second fourteen-year renewal possible if the author was still alive. In the landmark case Miller v. Taylor (1769) the inherent rights of authors to control what they produce, independent of statute or law, was affirmed. While this case was later overruled in Donaldson v. Becket (1774) the practice of recognizing the rights of authors had begun.⁴

Anglo-American systems of intellectual property are typically justified on utilitarian grounds. Limited rights are granted to authors and inventors of intellectual property “to promote the progress of science and the useful arts.”⁵ Thomas Jefferson, a central figure in the formation of American systems of intellectual property, expressly rejected any natural rights foundation for granting control to authors and inventors over their intellectual works. “The patent monopoly was not designed to secure the inventor his natural right in his discoveries. Rather, it was a reward, and inducement, to bring forth new knowledge.”⁶ Society seeks to maximize utility in the form of scientific and cultural progress by granting rights to authors and inventors as an incentive toward such progress.

In the last few years, however, intellectual property rights have been viewed as state-created entities used by the privileged and economically advantaged to control information access and consumption. Recent legislative and legal decisions dealing with peer-to-peer file sharing and extensions of copyrights have solidified this position. Needless to say, the normative, political, and social issues related to this area of information ethics remain hotly contested.

Privacy: Greece, China, and John Locke

Social recognition of privacy interests, unlike institutions of intellectual property, is older and more widespread. Examining the normative, political, legal, and historical contexts surrounding privacy is difficult because of an overabundance of subject matter—rituals of association and disassociation are cultural universals. To limit the discussion, we will focus on two cultures—ancient Greece and China—and one political and moral theorist—John Locke.

In Greek society the distinction between public and private activity was entrenched by the time of Socrates (470-399 BC), Plato (427-347 BC), and Aristotle (384-322 BC). Typically the distinction was cast in terms of political activity compared to isolated intellectual pursuits.⁷ As an early social critic, Socrates played two roles. He did not hold public office and sought his own personal ends, yet at the same time Socrates challenged many of the customs, institutions, and well-established philosophical theories of his day. In a very public way Socrates voiced the opinion that “the unexamined life is not worth living,” calling upon individuals to examine their own personal views and beliefs. Socrates then publicly challenged, and in many cases humiliated, those who had not examined their own beliefs.

Plato was openly hostile to privacy, deeming it unnecessary and counterproductive in relation to the ideal state. In The Laws Plato advocates the elimination of private spheres of activity.

The first and highest form of the state and of the government and of the law is that in which there prevails most widely the ancient saying, that “Friends have all things in common.” Whether there is anywhere now, or will ever be, this communion of women and children and of property, in which the private and individual is altogether banished from life, and things which are by nature private, such as eyes and ears and hands, have become common, and in some way see and hear and act in common, and all men express praise and blame and feel joy and sorrow on the same occasions, and whatever laws there are unite the city to the utmost-whether all this is possible or not, I say that no man, acting upon any other principle, will ever constitute a state which will be truer or better or more exalted in virtue.⁸

Plato views privacy as something that is inherently disvaluable in relation to the perfect state. Moreover he recognizes no psychological, sociological, or political needs for individuals to be able to control patterns of association and disassociation with their fellows.

Aristotle, on the other hand, makes use of a public/private distinction in at least two ways. First, he recognizes a boundary between affairs of the state and household affairs. Jürgen Habermas noted, “In the fully developed Greek city-state the sphere of the polis, which was common to the free citizens, was strictly separated from the sphere of the oikos; in the sphere of the oikos, each individual is in his own realm.”⁹ Second, contemplative activity, which is necessary for human flourishing, requires distance, space, and solitude from public life.

In China, the public/private distinction was well understood by the Warring States period 403—221 BC.¹⁰ Like Aristotle, Confucius (551-479 BC) distinguished between the public activity of government and the private affairs of family life. Confucius also contends that “a private obligation of a son to care for his father overrides the public obligation to obey the law against theft”¹¹ and that “a timid man who is pretending to be fierce is like a man who is so ‘dishonest as to sneak into places where one has no right to be, by boring a hole or climbing through a gap.’”¹² Han Fei Tzu (280-233 BC) writes,

When T s'ang Chieh [a mythic cultural hero] created the system of writing, he used the character for “private” to express the idea of self-centeredness, and combined the elements for “private” and “opposed to” to form the character for “public.” The fact that public and private are mutually opposed was already well understood at the time of T s'ang Chieh. To regard the two as being identical in interest is a disaster which comes from lack of consideration.¹³

While not sophisticated and clearly contentious, the public/private distinction arose and was a matter of philosophical debate in two distinct cultural traditions. In both ancient Greece and China privacy was a commodity purchased with power, money, and privilege. Barriers such as walls, fences, and even servants secured areas of isolation and seclusion for the upper class. To a lesser degree, privacy was also secured by those with more modest means.

For John Locke (1632-1704) the public/private distinction stems from his conception of the state of nature, the legitimate function of government, and property rights. The state of nature was a pre-governmental state in which individuals had perfect freedom bounded by the law of nature.¹⁴ As sovereign and moral equals, individuals in the state of nature had rights to life, liberty, and property. Unlike Thomas Hobbes, who viewed the state of nature as hypothetical rather ...