On “Crystal Prisons”, Rights, and the Reality of Competing Values

A couple of days ago, the Electronic Frontier Foundation released a manifesto on the future of computing, claiming that companies that offer closed computing systems (like Apple and Microsoft) are violating mobile user’s fundamental rights.  I use the term rights here because they use it at the end of the piece in the section “toward a bill of rights for mobile computer owners” and employ phrases like “deprived of liberty.”  The basic thrust of the argument is that all computing devices should be open, meaning that users should be able to add or modify the software and hardware in any way they see fit.  The piece is not long, and is worthwhile reading.

It has generated some pretty thoughtful critical responses within the Apple-using blogosphere.  I won’t go so far as Peter Cohen at the Loop and title this post “The EFF can suck it“, but I do think the EFF’s material is both poorly framed and poorly argued. As is probably the case with all manifestos, they ignore a host of reasonable principles and perspectives in order to try to motivate the masses.

Before I get into some of my concerns, let it be said that I have great respect for the work the Electronic Frontier Foundation does. The organization has done tremendous good over the years.  It sounded the alarms about SOPA, which helped raise awareness of the potentially harmful affects of the legislation.  It has also has fought in court on the side of people whose freedom of speech had been violated. Hats off to them.

That being said, I think that their manifesto has several critical problems.

1) The Electronic Frontier Foundation’s argument rests upon a slippery slope argument: if one company decides to offer closed systems, then all will in the future. This is a sloppy form of moral argumentation. For the moment, let’s concede their underlying point, which is that a world that has only closed computer systems would be a bad world.  This is a position that has been laid out before, most notably perhaps by Jonathan Zittrain in The Future of the Internet (great book, definite read), and it is an intellectually compelling prospect.

The problem is that there is no solid evidence to suggest that we are inevitably spiraling toward a world with no computers you can monkey with.  The situation is much more complex.  For instance, it turns out that the open Android system has been pretty popular and offers a real alternative to closed systems like iOS and Windows Phone.  Heck, Apple—the purveyors of closed—opened up the very closed world of phone company control when it introduced iPhone. In the absence of any other data, I am forced to conclude that there may be a slope, but it doesn’t seem to point down or be all that slippery.

If the EFF was in my class, I’d hand the paper back for revision on this basis alone.

2) Back here in the present, you are free to choose open systems. Closed devices have no monopoly power. There are lots of non-closed options for consumers.  Indeed, there are a mind-boggling array of Android devices and Linux capable computers out there. People can choose something open very easily, and the open/closed issue is generally well known by consumers. What’s more, people can choose open on an Apple product.  In response to an Electronic Frontier Foundation letter, the Library of Congress ruled that jailbreaking your iPhone is legal. People do it all the time, now. There is even an app store online for people who jailbreak their iPhones. Why assume closed will win?

3) At a more fundamental level, the Electronic Frontier Foundation seems to me to be stretching the idea of a right. Indeed, I’d say they treat it more as a rhetorical device than legal or moral category.  Drawing upon the work of bioethicists Tom Beauchamp and James Childress, we could describe rights as justified claims that individuals are able to make on society, based either on legal or moral grounds. Generally speaking, rights focus on the basics, things that are fundamental to who we are as human beings. Life, liberty, and the pursuit of happiness are some basics. So, too, are the things in the Bill of Rights: religious expression, personal expression (speech), sharing of information (the press), movement, self-protection (physically and in the courts), and privacy (implied). To put it another way, you have a justified claim on society to back off and let you worship or travel.

The EFF’s argument assumes that this sort of claim is established: that open systems are a human right! But is that really the case? I just don’t think we’re there yet.  If we are, the EFF certainly doesn’t demonstrate it. Heck, we aren’t even at the point where possession of a computer or cellphone is a right.

Which brings us to the other side of rights: rights, even once established, are not necessarily unlimited.  The Bill of Rights itself provides examples of legitimate limits.  For instance, the right to privacy and property can be infringed upon in the form of search and seizure. We see this all the time.  You have a right to religious expression, but not to carrying out human sacrifice.  You have the right to movement, but not a driver’s license (that’s a privilege accorded by states).  You have the right to speech, but not to own a radio station or yell “fire” in a crowded theatre. When expression of a right violates the rights of others, it can be legitimately limited. That’s why we abolished slavery, after all.  Property and state’s autonomy versus freedom.

But, ok. For the sake of argument, let’s say that that open systems were a right.  Given the wide availability of open devices, would the simple existence of closed devices necessarily constitute a violation of the right?  Probably not. Because open systems are widely available, you are able to exercise your right elsewhere.  The fact that some stores refuse to sell pornography does not constitute a violation of the right free speech. You can’t require WalMart to carry Playboy.

4) Which leads us to the underlying issue with the Electronic Frontier Foundation’s manifesto, which is that it fails to recognize that there are competing valid principles at work in this case. Steve Wildstrom over at tech.pinions hits the nail right on the head when he says about the manifesto:

There is nothing in the call [for openness in computing] about security or ease of use, issues that actually drive users’ choices. This has been a huge blind spot of the free and open software movement for years. And until they take usability seriously, they will be pushed further to the fringes of the tech world and more and more of what we do goes mobile.

Openness is one principle at work in evaluating the technical, economic, legal, or moral status of computing technologies.  But it is only one principle; there are other legitimate ones to consider. Ease of use, for instance. Or cost. Or treatment of workers who manufacture products. Or conduct of leadership. Security is another—and a big one.  Personally, I don’t want my personal data housed in a system that is particularly open.  I want companies to do what it takes to make sure that the giant pile of info generated by my devices stays private. If my freedom to monkey with my device is limited to ensure security, than so be it. It is a compromise I am well informed about and am happy to make. And I simply don’t think that my choice seals a future of hegemonic computer despotism.

Like it or not, moral and legal principles will come into conflict.  The Bill of Rights, a host of case law, people’s day to day experience, and pretty much every moral system in the world recognize this.  Even in the BoR, freedom is not the only value worth pursuing. I watched a story last night on PBS about the cost of higher education and debt these days. How do you decide which is more important: the value of education or the value of financial responsibility, which higher ed can compromise.  I’m not entirely sure. Which is more fundamental?

The EFF operates as if freedom is the only legitimate value. That is simultaneously its greatest strength and greatest weakness. The EFF exists to protect freedom. For them, it is the only valid moral or legal principle. This single minded focus on freedom keeps them relevant. But it is also why, in this case, they sound sort of foolish.  And, if Steve is right, that’s why the free and open software movement risks becoming sliding into irrelevance.

I look forward to the Electronic Frontier Foundation’s return to the fighting the good fight to protect people against actual rights violations. Leave the link-bait to those who have nothing better to do.

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