Thoughts – Your Digital Self and Real Self: Separate But Unequal and Why

water fountains

To level set, the objective of this blog is to address the degree to which technology has changed domestic and international politics in the modern Information Age with profound implications upon human civil liberties.

Throughout the arc of history, there is clear and compelling evidence the development and ownership of complex tools and technologies, as a product of human creativity, has changed the course of humanity. There is no shortage of excellent books and blogs written by profound authors on these advancements. There seems, however, to be a gap in the dialog that this blog has addressed and will continue to address. The point of view this blog is written from is that humans have a digital persona that mirrors their physical one, but the two personas do not share the same set of constitutional and human rights despite being one in the same.

In a prior post titled “The Religion of State Power and Making Government Simpler,” I argue the political and intellectual operators of the modern progressive movement have fundamentally changed the nature of how the U.S. government works by making it easier for the government to exercise its power based on ideological and political terms. To follow up that post I wrote three research posts that each explores how the Madisonian institutions (Judicial, Legislative, and Executive) of the U.S. government practice the religion of state power based on the work of Michael Glennon at The Fletcher School of Law and Diplomacy.

The empirical data and research suggest a strong bias by the people and institutions of the Madisonian institutions for expanding state power regardless of ideological affinity. Those findings coupled with my research in Part 1 and Part 2 which argue the U.S. is an authoritarian national surveillance state with respect to our civil liberties and natural human rights and the ideas supporting it come from the modern progressive movement, brings the discussion to a critical point and question:

Can Laws, Regulations, and Policies That Infringe On Your Digital Life Be Considered Racist and Discriminatory in Nature?

John Podesta is the father of modern progressivism, founder of the Center of American Progress, and current Senior Advisor to the President of the United States. He was tasked in January 2014 by President Obama with completing a comprehensive review of the way that “big data” will affect the way we live and work; the relationship between government and citizens; and how public and private sectors can spur innovation and maximize the opportunities and free flow of this information while minimizing the risks to privacy.(1) Essentially, this was an effort by President Obama, John Podesta, and the White house to convey their point of view of how technology has changed politics. This coincidentally came right on the heels of President Obama’s NSA Review Panel’s report being published.

According to Podesta we are undergoing a revolution in the way that information about our purchases, our conversations, our social networks, our movements, and even our physical identities are collected, stored, analyzed, and used.(2) The immense volume, diversity and potential value of data will have profound implications for privacy, the economy, and public policy.(3) Podesta’s working group considered all those issues, and specifically how the present and future state of these technologies might motivate changes in U.S. policies across a range of sectors.(4)

The review lead by Podesta was a collaborative effort.(5) The President’s Council of Advisors on Science and Technology (PCAST) conducted a study to explore in-depth the technological dimensions of the intersection of big data and privacy, which fed the broader effort of the review.(6) The working group consulted with industry, civil liberties groups, technologists, privacy experts, international partners, and other national and local officials on the significance of and future for these technologies.(7) The group also worked with a number of think tanks, academic institutions, and other organizations around the country as they convened stakeholders to discuss these very issues and questions.(8) Many countries and organizations abroad, in response to the Snowden revelations, were also analyzing and responding to the same challenge and seizing the opportunity of big data.(9) These discussions also helped inform the study lead by Podesta.(10)

At the outset of the project Podesta admitted they didn’t expect to answer all of the questions or produce a comprehensive new policy in 90 days, but did expect this work to serve as the foundation for a robust and forward-looking plan of action.(11) The final report was published and released on May 1st, 2014. In the one-page opening letter to the President, Podesta and his collaborators make the following statements:

While big data unquestionably increases the potential of government power to accrue un-checked, it also holds within it solutions that can enhance accountability, privacy, and the rights of citizens.(12) Properly implemented, big data will become a historic driver of progress, helping our nation perpetuate the civic and economic dynamism that has long been its hallmark.(13)

Big data technologies will be transformative in every sphere of life.(14) The knowledge discovery they make possible raises considerable questions about how our framework for privacy protection applies in a big data ecosystem.(15) Big data also raises other concerns.(16) A significant finding of this report is that big data analytics have the potential to eclipse longstanding civil rights protections in how personal information is used in housing, credit, employment, health, education, and the marketplace. (17) Americans’ relationship with data should expand, not diminish, their opportunities and potential.(18)

The report concludes by saying big data tools offer astonishing and powerful opportunities to unlock previously inaccessible insights from new and existing data sets.(19) Big data can fuel developments and discoveries in health care and education, in agriculture and energy use, and in how business organized their supply chains and monitor their equipment.(20) Big data holds the potential to streamline the provision of public services, increase the efficient use of taxpayer dollars at every level of government, and substantially strengthen national security.(21) The promise of big data requires government data be viewed as a national resource and be responsibly made available to those who can derive social value from it.(22) It also presents the opportunity to shape the next generation of computational tools and technologies that will in turn drive further innovation.(23)

Big data also introduces many quandaries.(24) By their very nature, many of the sensor technologies deployed on our phones and in our homes, offices, and on lampposts and rooftops across our cities are collecting more and more information.(25) Continuing advances in analytics provide incentives to collect as much data as possible not only for today’s uses but also for potential later uses.(26) Technologically speaking, this is driving data collection to become functionally ubiquitous and permanent, allowing the digital traces we leave behind to be collected, analyzed, and assembled to reveal a surprising number of things about our lives and ourselves.(27) These developments challenge longstanding notions of privacy and raise questions about the “notice and consent” framework, by which a user gives initial permission for their data to be collected.(28) But these trends need not prevent creating ways for people to participate in the treatment and management of their information.(29)

An important finding of Podesta’s review is that while big data can be used for great social good, it can also be used in ways that perpetrate social harms or render outcomes that have inequitable impacts, even when discrimination is not intended.(30) Biases have the potential to become cumulative, affecting a wide range of outcomes for certain disadvantaged groups.(31) Society must take steps to guard against these potential harms by ensuring power is appropriately balanced between individuals and institutions, whether between citizens and government, consumer and firm, or employee and business.(32)

The report says the big data revolution is in its earliest stages and we will be grappling for many years to understand the full sweep of its technologies; the ways it will empower health, education, and the economy; and, crucially, what its implications are for core American values, including privacy, fairness, non-discrimination, and self-determination.(33)

Even at his early juncture, the authors of this comprehensive report believe important conclusions are already emerging about big data that can inform how the Administration moves forward in a number of areas.(34) In particular, there are five areas that will each bring the American people into the national conversation about how to maximize benefits and minimize harms in a big data world:(35)

  • Preserving Privacy Values: Maintaining our privacy values by protecting personal information in the marketplace, both in the United States and through interoperable global privacy frameworks;(36)
  • Educating Robustly and Responsibly: Recognizing schools – particularly K-12 – as an important sphere for using big data to enhance learning opportunities, while protecting personal data usage and building digital literacy and skills;(37)
  • Big Data and Discrimination: Preventing new modes of discrimination that some uses of big data may enable;(38)
  • Law Enforcement and Security: Ensuring big data’s responsible use in law enforcement, public safety, and national security; and(39)
  • Data as a Public Resource: Harnessing data as a public resource, using it to improve the delivery of public services, and investing in research and technology that will further power the big data revolution.(40)

Report Policy Recommendations

This review identified six discrete policy recommendations that deserve prompt Administration attention and policy development. These are:

  1. Advance the Consumer Privacy Bill of Rights. The Department of Commerce should take appropriate consultative steps to seek stakeholder and public comment on big data developments and how they impact the Consumer Privacy Bill of Rights then devise draft legislative text for consideration by stakeholders and submission by the President to Congress.(41)
  2. Pass National Data Breach Legislation. Congress should pass legislation that provides for a single national data breach standard along the lines of the Administrations May 2011 Cyber security legislative proposal.(42)
  3. Extend Privacy Protections to non-US Persons. The Office of Management and Budget should work with departments and agencies to apply the Privacy Act of 1974 to non-U.S. persons where practicable, or to establish alternative privacy policies that apply appropriate and meaningful protections to personal information regardless of a person’s nationality.(43)
  4. Ensure Data Collected on Students In School is used for Education Purposes. The federal government must ensure that privacy regulations protect students against having their data being shared or used inappropriately, especially when the data is gathered in an educational context.(44)
  5. Expand Technical Expertise to Stop Discrimination. The federal government’s lead civil rights and consumer protection agencies should expand their technical expertise to be able to identify practices and outcomes facilitated by big data analytics that have a discriminatory impact on protected classes, and develop a plan for investigating and resolving violations of law.(45)
  6. Amend the Electronic Communications Act. Congress should amend ECPA to ensure the standard of protection for online, digital content is consistent with that afforded in the physical world – including by removing archaic distinctions between emails left unread or over a certain age.(46)

While the report for the most part is directionally accurate in what it says, it falls short on any real meaningful actions/next steps. Podesta suggests Congress should write legislation, which is true, it should. But the reality of how the U.S. legislative branch practices the religion of state power, any meaningful legislation will be watered down to be meaningless in substance. Based on how the Executive branch practices the religion of state power, any meaningful legislation will be vetoed and anything signed will be meaningless in any regard unless of course it is positive for expanding government power. The judicial branch will only rule on cases that eventually come to it and even then it can only rule based on the information in the case file.  This sets up some interesting politics because this report is all about politics, which is not surprising given that John Podesta is the man charged with managing the process. When Podesta worked for the Clinton administration he was dubbed “The Secretary of Shit” because his job was to dispense with the copious scandals of that administration too.  Mr. Podesta is just sticking to what he knows best.

The politics of the report are clever. The report gives the administration the ability to look like it is taking the high and principled road, but suggests methods that will most certainly never take the country down the path this administration purportedly desires.  The report purposefully does not address the NSA revelations, which is strange because this report sets up the administration to critizcize the private sector for its use of information, while not seriously evaluating the governments own policies. Perhaps some type of self induced data breach event will occur in the not so distant future that will give the administration the political expediency, based on the alleged principled reputation this report masquerades, to take some meaningful executive action (real policy) as it relates to regulation of technology the industry, data brokers, etc. that comports the narrow progressive ideology.  Something like this mysteriously happened in 2011 when RSA Security was hacked, and its master cryptographic keys were stolen. This enabled someone or government agency to hack into the International Monetary Fund, U.S. Department of Defense, Lockheed Martin, etc. but no major investigation occurred but it most certainly would have helped with defense budget appropriations and policy development with Madisonians. Perhaps it was the U.S. Government national intelligence community hacking itself to further advance its already authoritarian nature. Given what we have learned from the Snowden archive, pernicious false flag activity like this would not be out of character for them.

Remember, information is power. Jack Balkin from Yale law school in his paper “The Constitution in the National Surveillance State” that was published in “The Constitution in 2020”, said that the information state is the logical extension of the social state and national security state. Podesta’s report, not surprisingly, suggests the same logical extension as Jack Balkin by discussing the importance of big data to government programs like welfare, etc but also by not acknowledging the authoritarian nature of the current national surveillance state. The modern conservative movement concerns itself with the advances of socialism in the U.S., however neither political party seems overly concerned about the U.S. becoming an Authoritarian Information State because it furthers the agenda of those who practice the religion of state power, which is all of them.

Another politically thought provoking item; in recommendation 6 the report basically says that our digital lives and physical lives should be held to the same standard under the law. This I agree with, however the report says nothing about doing so under the Constitution. The report says legislation should be done through ECPA by congress. The likelihood of this occurring is low but could occur through executive action. Oversight of our privacy would then be the job of some bureaucratic agency to implement through the regulatory framework and not the legislative branch. This is thought provoking because it comports with the fact that we know Cass Sunstein through his work in OIRA, thanks in no small part to him publishing a book about it, perverted the regulatory rules to make it simpler for the government to deepen its commitment to the religion of state power.

Thanks to Sunstein the regulatory framework is like a mini, yet hidden, second Bill of Rights. Podesta’s report discusses rights, I have argued in a prior post, positive right are really another perversion of progressive thinking because it alludes to rights of people, but only when that right is positive for the policy of the government. Any ancillary positive benefit for citizens is purely a coincidence; this is the religion of state power in full form. Those who practice the religion of state power always rhetorically allude to constitutional principles, however the empirical evidence suggests they truly have no interest in our Constitutional rights or human rights. This is because the Constitution is designed to restrain state power; in other words, it is designed to suppress the ambitions of those who practice the religion of state power.

Podesta’s report and the nature of its recommendations support the argument that this administration, Congress, and the authoritarian national surveillance state feel entitled to all of our information. Geoffrey Stone, one of Obama’s NSA Review Panel members, said as much to me over email too. This is disappointing because many of these people masquerade as being the defenders of justice and righteousness, but are nothing more than arguably the largest perpetrators stealing our Constitutional and natural rights under the guise of positive rights. This is arguably racist and highly discriminatory on a level never before seen in my humble opinion because our digital lives and real lives are effectively one in the same, but are obviously not treated equally. What we are experiencing is modern era Jim Crow laws and regulations aimed directly at our digital lives and thus our real lives. This is not black vs. white though, but Digital vs. Real. People, Governments, Business, etc. should never be able to act with prejudice and discriminate against our digital lives by leveraging our information which directly impacts our real lives. The government views our digital lives and real lives as separate but not equal, despite them being one in the same.  Recently, Dr. Ben Carson persuasively argued the Obama administration and its progressive policies have deteriorated race relations more than any other modern administration. I could not agree more with Dr. Carson.

The uplifting part is that sometimes people or groups of people tell the truth, even if by accident, so in my next post I will illustrate some ways the people and the private sector can take meaningful action to take back and protect their rights.  You need to know and protect thy digital self, because nobody is quite like you.


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