Cautiously disagreeing with Yochai Benkler on NSA data collection

Experience tells me you disagree with legal scholar Yochai Benkler cautiously and with great risk knowing that you, not he, will probably end up being wrong. I once wrote an MA thesis on intellectual property rights and democratic theory, and of everyone I read and wrote about, Benkler’s analysis of how the intellectual properties of the internet were providing a space to turn “consumers” into “users” proved most correct, much more correct than, say, Lawrence Lessig’s comparatively pessimistic view of intellectual property as eroding space for creativity. At the time, I sided with Lessig. Benkler proved more right.

That said, I disagree with Benkler again! He has a short article in The Guardian, in which he argues the NSA should immediately shut down its data collection and analysis program. His argument is that the data are not providing NSA anything useful, thus inverting “the basic model outlined by the fourth amendment: that there are vast domains of private action about which the state should remain ignorant unless it provides clear prior justification.” Benkler argues there is no “credible evidence” that the NSA data program is “critical to national security.”

A few thoughts: First, if Benkler prefers an ignorant NSA, what he really prefers is no NSA. Perhaps I do too. Especially at the present moment, in which none of us can verify knowledge of the NSA with any certainty: we simply don’t know who controls it, what are its private objectives, why it wants relatively innocuous data, etc. We really don’t know any of these things. If someone says they do, they are either lying or pretending. We know only the public information, which is probably at best barely reflective of the private facts. Under this circumstance, I can share the anti-NSA sentiment.

Second, Benkler equates NSA with the state. This is where I start to disagree.

Arguing the state as a whole should remain ignorant of these data raises a problematic issue: Does Benkler really prefer no state agency have access to these data? Should Google, Facebook, Twitter — for that matter, retailers like Target Corp. — have access to data and knowledge that government does not? If so, why?

My question to Benkler and other NSA critics is this: Would it make you feel better if a different government agency other than NSA were the one collecting and analyzing these behavioral metadata? For example, the Commerce Department? Within Commerce, it would seem fitting for these data to be analyzed by the Bureau of Economic Analysis. Would this put our minds at ease?

I raise this question because the data under scrutiny are valuable intellectual property. Perhaps, as Benkler argues, they are not that useful in providing national security, but the data are certainly valuable and provide incredible new understandings of economic behavior, as private corporations all over this country and the world are proving.

I may share your wish for an ignorant or perhaps non-existent NSA. But I don’t want an ignorant government. If we are to argue these data are too touchy for all levels of government, we have to explain why they are not too touchy for private corporations.

Now I’m just going to wait, continue reading Benkler, adapt my position according to new information, and probably learn soon enough why he is right and I am wrong. It’s happened before.

This entry was posted in advanced capitalism, hard data, intangible assets, intellectual property, the database. Bookmark the permalink.

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