By J. Bradley Jansen
On one hand Marc Rotenberg of the Electronic Privacy Information Center organized a coalition letter and filed acomplaint with the Federal Trade Commission that stated that the “changes violate user expectations, diminish user privacy, and contradict Facebook’s own representations.”
On the other hand, Berin Szoka of The Progress & Freedom Foundation took issue with the complaint EPIC organized (and several other groups signed on) in a post on the Technology Liberation Front. He argued that “while ‘privacy advocacy’ groups like EPIC have an important role to play in helping to focus and articulate the concerns of privacy-sensitive users, it’s not obvious that calling the government in to call the shots is the best way to produce privacy controls that empower privacy-sensitive users within the context of an increasingly open system.”
Both make legitimate points and deserve credit for sticking to the issues and avoiding the personalization of attacks that pervades the current political climate. The more important point, I think, is that the debate is conducted about contractualism. The gist of the dispute revolves around respect for the importance of private contracts and the terms of service and privacy policies that Facebook established.
This dispute is one more sign of the resurgence of contractualism and the resumption of real progress. Under primitive societies, one’s rights were determined by their status within the family or tribe. Justice for an offense committed by the member of one tribe necessitated the same offense against a person of similar status of the perpetrator’s tribe–not against the actual perpetrator.
Sir Henry Sumner Maine is the authority on our legal evolution. As he explains in his tome Ancient Law, “we may say the movement of progressive societies has hitherto been a movement from Status to Contract.” As we move to new legal areas in technology and globally–such as online social networking sites–it behooves us to follow Maine’s caution against insularity and ignorance of other legal backgrounds and traditions.
The Facebook privacy debate offers us a good opportunity to learn from respectful debates from other viewpoints. And to move from an atavistic understanding of our rights according to our status or group characteristics towards a more progressive one based on our individual right to contract.