While people argue over the balance to strike between environmental preservation and economic activity, no one now denies that this tradeoff exists — that some technologies and ways of earning money must remain off limits because they are simply too harmful.
This regulatory project has been so successful in the First World that we risk forgetting what life was like before it. Choking smog of the kind that today kills thousands in Jakarta and Delhi was once emblematic of London. The Cuyahoga River in Ohio used to reliably catch fire. In a particularly horrific example of unforeseen consequences, tetraethyl lead added to gasoline raised violent crime rates worldwide for fifty years.
None of these harms could have been fixed by telling people to vote with their wallet, or carefully review the environmental policies of every company they gave their business to, or to stop using the technologies in question. It took coordinated, and sometimes highly technical, regulation across jurisdictional boundaries to fix them. In some cases, like the ban on commercial refrigerants that depleted the ozone layer, that regulation required a worldwide consensus.
We’re at the point where we need a similar shift in perspective in our privacy law. The infrastructure of mass surveillance is too complex, and the tech oligopoly too powerful, to make it meaningful to talk about individual consent. Even experts don’t have a full picture of the surveillance economy, in part because its beneficiaries are so secretive, and in part because the whole system is in flux. Telling people that they own their data, and should decide what to do with it, is just another way of disempowering them.
A lawyer for Facebook argued last year that users can have no expectation of privacy if they interact with the company’s products, which I think shows a callous indifference to whether users should have an expectation of privacy. It’s dismissive to the point of callousness. A lack of meaningful legislation protecting individual and collective privacy freedoms is increasingly a failure of ethics and responsibility.