The modern origins of the notion of the rights of individuals have often been linked to the liberal humanist philosophy about the human subject, which historically culminated with the Enlightenment. The right of privacy is one of those rights of the individual. Although it is not directly spelled out in the American constitution as an end in itself, several European constitutions and/or privacy legislations as well as the United Nations’ Universal Declaration of Human Rights speak to that humanist legacy.
Now mediated by digital technology, the identity of the human subject is clearly morphing into a different type of entity (if anything, the themes of cyborg and posthuman in the literature remind us of that.) The individuality and the autonomy –literally the capability of self-determination– of the human subject at the core of the liberal conception are clearly challenged if not already outdated. It appears that human subjects do no longer reside only within their bodies; our identity is no longer contained within the boundaries of our skin.
More than legal constructions and as never before, technology gives human beings the capacity to act at distance in space and time. With digital technology your identity can speak and act on your behalf at any time anywhere. In more and more instances, it might also do so outside your will and perhaps against your interest. The question is, how legacy individual rights such as privacy fit in this new paradigm? And what exactly is that new paradigm, to begin with?
Discussing those questions last month (Feb ’10) on a panel at a symposium with law students (Communications Law & Policy Society at Syracuse Univ.) and other legal experts, I couldn’t resist but bring up the following issue about blogging.
Lately, a decision taken by one high profile institution of the Republic (albeit one that is not centered on technology) has reminded us of the challenge of defining individual rights, let alone redefining the boundaries of the individual. The decision by the Supreme Court in Citizens United v. Federal Election Commission reverberated throughout the political spectrum and the media landscape precisely for that reason underneath the obvious political concern. Who is the subject of rights, especially those rights we have come to understand as rights of individuals?
The Court’s majority decision was wholly or partly supported by the opinion that free speech is not only the right of human individuals but also legal entities (or persons) such as corporations. Arguably, the First Amendment only addresses with the speech while remaining silent about the speaker who shall enjoy the right free speech. We might remember that the Federal Trade Commission has issued a rule that requires bloggers to disclose the identity of corporate sponsors, if any (an effort to address the concern of individuals or entities that may be unfairly attacked or defamed by individual authors of blog posts.) One has to suspect that such regulation was premised on the belief that corporations are not subject to the First Amendment right. Granted the Supreme Court imposes restrictions on disclosure and reporting requirements in order to protect the anonymity of individual contributors (to political campaigns through corporations,) it remains to be clarified whether the FTC blog posting regulation regarding corporate sponsors still is legitimate. If corporations are subjects of free speech and if there is such thing as a right to anonymous free speech, then can the FTC still require as a regulatory matter the disclosure of corporate pay and support in blogging (or any other speech performance for that matter)? If corporations and associations are directly protected by the First Amendment, then we as a society will have to defend their right to anonymous speech. Or else, individuals will run the risk of losing that same right – Corporations & Citizens: United!