Thursday, January 18, 2007

America Pants'ed in Principle

America, it is said, is a nation of principles.

For most of our history, we've held up our high-faluttin' ideals, like a sagging pair of flannel boxer shorts, as evidence of our moral superiority. I'm talking about secular humanism, all men being created equal, rag-to-riches opportunity, patiently waiting your turn in line at the bakery. Do you think people wait their turn in those other countries?

But there's a new breeze blowin' my friends, and America is getting pants'ed. Big time.

Because we've also always had an extreme case of pragmatism, yang to our idealism's yin. And one could argue that we mostly (only?) adhere to those ideals that bring practical benefits. And if that's true, then troubles a-brewin', because the technology has dissolved so many of the tethers that connect our ideals to the practical.

But let's back up for a second. There has always been--and always will be--tension between altruism and selfishness. Do we wait our turn in line because it's the kind thing to do? Because we get off on the smug, superior feeling that results? Or because we don't want to get punched in the nose? Generally, it's not worth arguing about. Some people--usually self-described "artists"--act like dicks just to prove their motives are pure. But the rest of us are reasonably well behaved, and who cares if it's only because we want to avoid the censure of the other people in the store. There's only one baguette left, and I was next. Thank you very much, and have a nice day.

But what if all the material and societal checks were to disappear? What if we could misbehave and not get caught, arraigned, humiliated, fined, punched, and despised by our neighbors and attractive people of the opposite sex? Chew on that for a minute... Tough going, huh? Yes--unfettered personal desire is the beef jerky of cultural trends. And it's what's for dinner America, so you might as well pull up a chair and tuck in.

Because technology--Damn you, technology!--is changing everything. And not necessarily for the better.

I'll offer two examples to get things started. Then I bet everyone can put their thinking caps on and come up with plenty of others.

Let's take music publishing and print publishing, morality tales that start from the same place, but have different endings. Both fall under the auspices of intellectual property and copyright law. The laws primarily protect the abstract elements of such products--the ideas contained therein. That's why a recording artist can go to court and argue that someone else used a few measures of a tune they wrote.

But in practice, these laws are only as enforceable as the leverage provided by the physical medium of publishing will allow. That is why the stories of music and books have diverged. Back in the day, recorded music was wed to its physical avatar, a black disc called a "record." Only factories could make records, and that enabled music publishers to ensure that everybody had to pony up to get their hands on their product. Sure, you could tape your favorite records and give the tape to your friends, but the tape sounded like crap and it was a pain to do. So-- back to the debate about altruism vs. selfishness--what were we paying for when we bought the record? The abstract content or sound and the feeling it produced? Or to avoid the inconvenience unfulfilling results of getting a tape of that same music some other way?

Back then, it was a pointless question. There was no good practical way to circumvent the law, to ignore the principle. So we behaved.

But now, music has escaped its bonds, and it roams free and wild on the digital savannah. It is weightless, bodiless, and reproduces infinitely without degrading.

Books meanwhile, remain safely protected by the obstacles to digitizing their content and the value of their physical medium. Anyone with a computer and easily available software can rip a CD in five minutes, but scanning a book would take forever, and--the panting enthusiasms of goo-goo eyed technophiles aside--there are no affordable and satisfying devices around for reading that digitized text that can compete black text on white paper pages.

Another example: let's consider the wiretapping conducted by the kleptocratic dictatorship that presently afflicts this country. Why was the administration for so long adamant that the program operate outside of the purview of the courts? Most speculation in the media attributes the policy to sheer thirst for power. But those who grasp how such a program must function know there's another piece to the puzzle.

Undoubtedly, the national spook agencies, with the modestly coerced assistance of private carriers, are sweeping up vast, undifferentiated reams of voice and electronic communications and then using computers to crunch the data. They are looking for suspicious words, phrases, routings, or addressees. ("Terrorist"? "Bomb?" "Democrat?"). Of course they would be slow to request warrants for such activity, because judges might ask questions about the program's conduct, and that conduct clearly contravenes the constitutional constraints on unreasonable searches, at least as that has been interpreted to date by the courts. To date, it has always been understood that there must be a basis for suspicion regarding a specific individual before surveillance can be authorized. But now the government wiretaps everybody and just promises--scouts' honor!--to ignore all calls but those from terrorists.

Which brings me back to the central point. What exactly changed in the last few decades? Are we rethinking our attachment to the principle that reasonable suspicion must precede surveillance? Not really. What's going on is we're confronting (or refusing to confront) the fact that the policies of 50 years ago were driven more by the practical than by the principle. Fifty years ago, there was no email. Most correspondence was typed or handwritten. The phone system was analog. And even if there had been some way to collect all that data, there was no possible way to sort and filter it.

Those were simpler times.

But these thoughts are not intended as a paean to the good old days. What I'm trying to point out is that if we are going to preserve in this digital age what we have considered to be some of our unalienable liberties, we are going to have to start letting our principles drive our practice in ways they have not in the past. And I don't want to be a downer, but Americans don't even pay lip service to morality and "principle" unless they're guaranteed a good old fashioned rapturin' in return. And even then…

But I'm only sayin'.