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Main article: Privacy, identity, and fraud in the ratings system
Rawls and Privacy U99
Rawls does not directly address the issue of privacy rights but we can infer that he would believe in a right to privacy as part of his basic liberties principle. If we go behind the veil of ignorance, and consider what our basic liberties should be, most of us would reasonably include a personal right to privacy. This means the government, and others, cannot snoop on our private conversations, see us on camera while we’re in our homes, etc. It’s not a stretch to think that Rawls would agree.
Generally speaking, Rawls considers rights basic if they are required to advance someone’s moral powers, develop a sense of justice, or pursue a conception of the good. To do so we might be expected to develop a strong sense of identity and relationships with others. Importantly, we might also need to make decisions that were free from interference or surveillance by others. It would appear that privacy is a basic raw material in any reasonable concept of personal liberty.
But how far this goes might be subject to some debate. Let’s take the case of strong encryption and whether it should be considered a part of our basic right to privacy. Usually we associate this technology with the ability to hold a private in-person conversation in a room with no one else listening. This is not controversial and practically every Western person believes in such a right. Encryption simply gives us the ability to do this across the internet. It would appear that this technology is in keeping with a Rawlsian right to privacy.
We might pause, however, if we started seeing sufficient crime or terrorist activity enabled by encryption. Clearly, society has to determine where the balance is. Is it just a couple of minor incidents a year or is someone setting off dirty bombs in major cities? Any fundamental right to privacy that has a direct consequence of endangering our physical person (another fundamental right) would be subject to review.
This is in keeping with a Rawlsian notion of practicality and balance. A basic right exists up to the point where it interferes with another basic right. Clearly our basic liberties include the right to feel safe in our private and public spaces. An undue interference with that resulting from another basic right might necessitate some limitations.
In a nod toward utilitarian consequentialism, I would add to Rawls by proposing that rights are subject to results. People have the right, presumably, to play violent video games. If everyone understands that it’s just a game and their real-world behavior doesn’t change, it’s not a problem. But if everyone who played such a game turned into a mass shooter we might think twice about this particular right. Incidentally, there was a Star Trek TNG episode called “The Game” where a video game of sorts addicted the Enterprise crew in an attempt by an alien power to take over the Federation. Beyond its entertainment value, the point of the show was to comment on this topic. Consequences obviously matter.
We might further observe that, from our original position, the default is probably for a right to exist. We wouldn’t know in advance which rights might result in danger since we don’t have a good understanding of ourselves in such a condition, let alone an understanding of others or society at large. In other words, the default position is to grant the right. It is only in reaction to subsequent consequences that we would contemplate removing it.
In a conversation with Lem, he expressed a concern about the ability for people to dissent and revolt and that without privacy, they wouldn’t be able to do so. Clearly encryption furthers the ability for dissenters to communicate. And governments will always use personal safety as an excuse to crack down on encryption. In a free society we have the ability to change the government’s policy on questions like these, as long as we are aware of what is going on.
The Patriot Act, passed in the wake of 9/11, is an example of this. It allowed the government to detain suspected terrorists and eavesdrop on electronic communications with much greater ease than previously. It was reauthorized several times until 2020 when it expired. Over the years of its life, it gained notoriety due to the government’s bulk collection of private communications and the lack of due process for terrorism suspects. It should be noted that, although expired, federal intelligence and law enforcement personnel still have many of the powers granted by the act.
This is a fact which is not clear to most people. Among the minority that have any understanding of this issue at all, most believe the Patriot Act to either be expired, which it technically is, or to believe that it has been reauthorized in perpetuity. The truth lies somewhere in between. A basic understanding of this point would be crucial for further discussion in American society. Instead, we have a system where the majority don’t participate and are simply unaware. Indeed, the act was passed, like the decision to go to war in Iraq and Afghanistan, in a frenzy of panic over 9/11. Needless to say, this is not the deliberative process favored by Rawls, which carefully balances basic liberties and fairness.