Winner! The US T&C: Examining Law and Expectations in Our Digital World

A few weeks ago, in the wake of the Snowden Affair, I announced a contest to write a new social contract modeled on terms of service. Terms of service are, of course, the things most of us click through without reading when either signing up for a web-based service or installing a piece of software. There was doubtless something sarcastic, even cynical, about this contest.

A visualization of the US Internet, a web of technical and social bonds,
which, like all such bonds, include expectations.
(Source: National Science Foundation)

Today, I would like to announce the winner: Tall White American Male (Twitter: @TallWhiteMale), a resident of Chicago, who penned a proposed US Terms and Conditions. So, congrats to Tall White American Male. As spelled out in the contest announcement, he'll receive this remarkable shirt.  I have pasted his winning entry below, but before we come to that, I want to discuss why I held the contest in the first place.


Some people have asked me what this contest has to do with the history of science and technology, or science and technology studies (STS) more broadly, and whether it is a symptom of my resignation to ubiquitous surveillance. My answer to the first point is that STS may offer insights about these NSA programs and that imaginative, speculative writings are one way to address our current plight.

The strand of STS that has the most to say to discussions about the NSA programs is the one focused on the law, and this means, most centrally, the work of Sheila Jasanoff. Perhaps the best place to start is her essay "In a Constitutional Moment" (paywall). This usage of "constitutional" plays the well-worn postmodern game of deploying a word in a purposely ambiguous way. Here, constitution refers, on the one hand, both to the written Constitution and unwritten legal codes and, on the other hand, to ways in which we constitute—or make—the world, either by creating scientific pictures of reality or by building technological systems.  The point is that there is a dynamic interaction between (written or unwritten) norms and scientific theories/technologies. The formal constitutional debate and lawsuits about the NSA programs have hardened around whether searches of metadata violate the 4th Amendment, but it is how the NSA programs run up against the informal, unwritten norms of the Internet that is most interesting.

One irony of the Snowden Affair is that many people consider the Internet a space for freedom. Some describe it as a technology that has liberty written into its "code," and enthusiasts have celebrated how demonstrators and activists have used the Net to resist repressive governments. Yet, critics, like Evgeny Morozov, have mocked these ideas, arguing that this technology can just as easily be used for authoritarian ends. Not surprisingly, the NSA programs have enraged technolibertarians and heralds of Internet freedom. Interesting People, a large email list that has many members who (literally) helped create the Internet, has experienced a torrent of emails expressing anger and dismay. The NSA programs conflict with the norms, values, and expectations that many people have for and about this relatively young network technology.

The relationship between legal norms and technological change plays out in many different ways. One classic picture of the relationship is William Ogburn's notion of cultural lag (first articulated in 1922), which holds that technology often moves faster than laws, customs, and norms. Tradition lags behind invention. We have already seen some people spell out cultural lag arguments in response to the NSA programs. For example, Andrew Couts published a blog post that clearly states its position: "Restoring a Law from 1879 May Be Impossible with Technology from 2013." The url for the post puts the point more baldly, "Restoring the Fourth a Digital Age Pipe Dream." We will doubtlessly see more such arguments. Yet, Jasanoff has argued in the past that the idea of cultural lag is usually wrong because the law has almost always foreseen technological and legal possibilities. It will be interesting to see what historical interpretation of this point dominates down the road.

This issue of future historical interpretation brings me to something else I hoped to address through my post announcing the contest, namely the issue of education, social reproduction, and the public understanding of technology. In my original post, I imagined the US Terms of Service, which would state a user's privacy expectations, taking a central role in high school civics classes. Will those of us who lived through the immediate aftermath of 9/11 teach children that constant surveillance is simply a normal and assumed part of social reality? A connected issue is the relationship between consumerism and citizenship. The Internet arose from government and academia, but it has increasingly become a tool used for entertainment. (Some accounts suggest that Netflix takes up to 30% of US bandwidth in the evening; check out the fascinating image at the bottom of this page.) Yet, concerns about Internet privacy goes to the heart of our citizenship. If we add Internet literacy to our schools' curricula, as many argue for, should we put those lessons in home economics or in civics? This is partly what I was hoping to get at by suggesting a US Terms of Service, as if a kind of contract we use as consumers could come to define our lives as citizens.

Other imaginative works, or speculative fictions, that might further help us think through our current situation have occurred to me over the last few weeks. My wife and I are about to have our first child, and I have been preoccupied by thoughts of how I will explain our world (digital and otherwise) to my daughter. I pitched the idea of a book that would describe the NSA programs to children to the speculative fiction author Andri Magnason via Twitter. Magnason, who primarily works in allegory, responded, "...a world made of glass. Everything is visible, traceable, readable, and everything leaves traces and tracks, even thoughts." I was thinking of something more realistic, something for the kiddie non-fiction section, something that would begin "Once upon a time, some criminals attacked the United States" and would end, ". . . and so they watch." It could be called Your Friendly Watchers. Another possibility that I have discussed with friends would be an alternative history novel that imagines the fate of the Civil Rights Movement in the 50s and 60s if the feds had PRISM. Could we guarantee that these tools would not be turned on groups of US citizens if we entered a period of social strife? I think not. But American Science, a blog dedicated to the history of science and technology, is not the space for these kinds of writings. Therefore, this will likely be the only time this kind of writing contest will be held here.

And so we come to the winning entry . . .

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The US T&C as Proposed by Tall White American Male

These Terms and Conditions for Citizenship evolved from the United States Constitution, the Bill of Rights, and Declaration of Independence, and are the terms of service that establish and govern reasonable expectations to be held by citizens of the United States.

The Declaration of Independence identified an inalienable right to “Life, Liberty, and the pursuit of Happiness”, and the Founding Fathers declared “that the form of government which communicates ease, comfort, security, or, in one word, happiness, to the greatest number of persons, and in the greatest degree, is the best.” The events of September 11, 2001 and subsequent threats to the American homeland present an enduring danger to the Happiness of the American people. It is this inalienable right that the Terms and Conditions for Citizenship seek to protect.

By using or accessing methods of electronic communication including but not limited to telephone, email, camera, internet search engine, web browser, and social media platforms, citizens agree to these Terms, as updated constantly in accordance with secret laws, secret courts, and secret decisions. By utilizing the rights and privileges of US citizenship, citizens agree to abide by these Terms and Conditions in perpetuity.

The nature of this ongoing threat to American happiness requires extraordinary measures be taken by decision makers, and necessarily places limits on expectations of privacy. Data, in their many forms, are an essential element of electronic communication, and the monitoring of this element is critical to the cause of guaranteeing the safety, liberty, happiness of the American people. All data are to be considered critical to this cause unless otherwise specified, and while the product of communications between one or more citizens, are exempt from traditional notions of privacy. Similarly, present and future conditions are such that control and ownership of all forms of data cannot be left to the individual citizen. Data are crucial to the maintenance of the common defense and the general welfare, and must be safeguarded by the commonwealth. 

Surveillance of the people, by the people, and for the people will secure the benefits of liberty to this and future generations.