The following piece is a part of NULR of Note’s “Bring Back The ‘90s” initiative, aimed at exploring the evolution of legal thinking over the past three decades. For more, click here.
It started with the 1988 campaign to block Robert Bork’s appointment to the Supreme Court. A reporter leaked to the press a handwritten list of videotapes that the would-be Justice had rented from a Washington, DC store. In response to that privacy invasion, Congress enacted the 1988 Video Privacy Protection Act to ban disclosure of personally identifiable rental information, absent the customer’s written consent.
A decade later, I composed Aus der Neuen Welt, 93 Nw. U. L. Rev. 195 (1998), arising out of my participation at a Diplomatic Conference in Geneva during December 1996 that—under the auspices of the World Intellectual Property Organization—resulted in the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty, promulgated to adjust the world of copyright to that of cyberspace. The Article moved forward from the Video Privacy Protection Act to then focus on the comparable danger arising out of the newly enacted WIPO treaties—specifically, their mandate for member states to enforce copyright management information (CMI). CMI allows copyright owners to monitor how often their works are being accessed. The technology that services that goal employs cookies. Cookies have their pros and cons. On the positive side, they allow companies like Amazon to recommend a new book title based on past reading habits. But their con side gave rise to the admonition in my Aus der Neuen Welt Article:
“By the same token that I do not want my video preferences at a given store proclaimed, it is all the more objectionable to make available a full and comprehensive list of everything that I have ever read, or viewed, or listened to over the years. When the government has available to it an unexpurgated printout of each and every word, note, and image that has entered my brain for the past dozen years, then the era of Big Brother will have dawned.”
Even though I raised the specter of Big Brother in my Article, I later dismissed it as likely unfeasible:
“Amazon.com execs will admit privately that the company’s growth has outstripped its ability to warehouse, let alone mine, the data it collects. For the moment, most of that information – surprise! – simply disappears into Amazon.com’s hard disks.”
With the passage of two decades, the techno-utopian outlook so prevalent in that era—on which I relied to dismiss the more dystopian outlook of constant monitoring—seems quaint. The somber vision that was entertained there is the one that best reflects our present reality. In fact, today’s world is much darker on multiple levels:
- Back then, I was only concerned with what “the government has available to it” as an instrument to invade privacy. There was no Google or Facebook in 1998. Today, by contrast, “social media” pervade our world. The data points available to those private corporations dwarf anything imaginable before the turn of the millennium.
- The growth of computational power means that those companies now do possess the power to warehouse and process our information. Far from disappearing into the atmosphere, that data now resides in the Cloud, where it can be marshaled into an unrivaled advertising tool—which accounts for a combined market cap today between Google and Facebook exceeding $1 trillion. That sum was unimaginable to me then; in fact, it remains so today.
- I was only concerned that a profile about me could be constructed out of the “comprehensive list of everything that I have ever read, or viewed, or listened to over the years.” In other words, my focus was on the choices of books, movies, and other works of authorship serving as a window into my cognitive being. But in today’s world, Google can profile me (and Facebook can profile you) without the need to piggyback on published expression reflected by past books and movies. Instead, those corporate Big Brothers can capture keystrokes in searches, “likes” affixed to posts, and materials forwarded in order to create detailed biographies of millions of citizens.
- Hence, we have a crisis in democracy, in which dark forces (think Cambridge Analytica, the Russian Government, Internet trolls, etc.) can cheaply buy advertisements filled with falsehoods that have been market-tested to energize supporters, or to suppress the votes of adversaries.
That dark specter, which I dismissed in my 1998 Northwestern Law Review Article, has become so pronounced that I just finished teaching a seminar at UCLA Law School entitled “Social Media and the Future of Democracy.” Together with my colleague Neil Netanel, we covered a whole semester’s worth of topics with scarcely a mention the whole time of the word “copyright.” For the issues at the fore are more momentous than even those posed by that field, which we both love—ranging from social media’s role in coordinating pogroms in Southeast Asia, to hijacking democracy in the Philippines, to spreading hate speech in the United States, to destroying print media and replacing it with lies masquerading as news.
In spinning out the potential benefits and pitfalls in my 1998 Article, I tried to let my imagination roam broadly, to encompass the worst consequence that I could then imagine: “a risk of infantilizing the life of the mind is posed—turning humans from rugged individuals into bland cogs unable to do aught but conform.” But I failed to develop that theme, as it then seemed strictly like a theoretical danger.
Reality, sadly, has caught up with that danger too. The most recent book that I read takes almost 700 pages to detail the threat. In The Age of Surveillance Capitalism (2019), Shoshana Zuboff sketches the “psychic numbing” that has led us to this point in history, in which “the elemental right to the future tense is endangered by a panvasive digital architecture.”
It is sobering to find myself, two decades later, as the canary in the coal mine. The issues that arose then out of an exotic copyright treaty now lie front and center as threats to our democracy, our civilization, even our humanity. The time to take back control is now.
David Nimmer is Professor from Practice at UCLA School of Law. The world referenced in the title is the one conjured in his Article that appeared in these pages two decades ago, Aus der Neuen Welt. The reflections herein reveal him as more wary than weary.
POST-SCRIPT FROM THE AUTHOR: It was my joy to deal with the editors of the NULR, two decades ago as at present. One interesting aspect that arose recently was their request to me that all referenced material be immediately accessible to readers of this Blog. I remonstrated that I was citing full-length books, whose contents must be read thoroughly to appreciate the subtle points being raised. We compromised by affixing to this blog references to book reviews of the subject works. Thus, you dear readers are able to read effortlessly some additional reflections on the works I have cited. It is my hope that, thus motivated, you will obtain the books themselves to read and savor. The overall message I wish to convey through my world-weariness is one of wariness—it is a fallacy to believe that one can develop a truly reflective intellect limited to the “fast food” that is available online. For a truly balanced diet, the emphasis should be on works of sustained engagement—law treatises being one ready example, the various works cited above being another.