Harley Hahn's
Internet Insecurity


Chapter 6...

You Just Think You Have Rights

Do We Have a Right to Privacy?

In Chapter 5, we talked about privacy from the point of view of the individual. We discussed various types of privacy, as well as the biological and psychological forces that cause people to want privacy. In the next two chapters, we will turn our attention to these issues as they affect society as a whole.

To start, consider this problem. A less-than-honorable Internet marketing company has your email address and is filling your electronic mailbox to the Plimsoll Line with irritating junk mail. If they refuse to take your address out of their database, can you protest?

The answer to this question depends on a more fundamental question: do you legally have a right to privacy? Most people think they do, but the real answer is not so straightforward.

Depending on what country you live in, you may have some rights to privacy, but they are limited. This is significant because, as you will see in Chapter 7, the public debate regarding privacy is under the control of forces that are beyond the influence of individual people and the more legal rights we have, the better.

In most countries, people are entitled to specific legal rights in two different ways. First, it is recognized that human beings, just by being alive, have certain unalienable rights, that is, fundamental privileges that must be recognized and cannot be taken away. Second, people are given rights by the various laws that have been passed by the governing bodies of their country.

With respect to privacy, the question arises, do we have unalienable rights, or do such rights as we may have exist only because a legislature has passed a law (in which case, our rights would be limited and might be changed by a new law)?

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The Highest Law of the Land

If you think you are entitled to a right to privacy, you may be surprised. In the United States, the Declaration of Independence (1776) asserts:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..."

Similarly, the Universal Declaration of Human Rights (adopted by the United Nations in 1948) declares:

"All human beings are born free and equal in dignity and rights... Everyone has the right to life, liberty and security of person..."

Notice that there is no mention of a right to privacy.

In most countries, the highest law of the land is that country's constitution. Some countries also have a statement of human rights, which is usually part of the constitution.

If you were to examine various constitutions, you would find that none of them explicitly offers a right to privacy. Does this mean we have no rights to privacy?

Not necessarily. Legally, we have some rights to privacy, but, as I will show you, they are not fundamental rights.

In the United States, the ultimate law is the U.S. Constitution, and yet, nowhere in the original text (1788) or in the 27 amendments (1791-1992) will you find the word "privacy". This is significant in that the first 10 amendments — also known as the Bill of Rights (1791) — were drafted specifically to augment the rights recognized by the original document. Read the Bill of Rights carefully and you will find that the right to privacy is, indeed, conspicuous by its absence. (In fact, in the entire Constitution, the word "private" appears only once, in the 5th Amendment: "...nor shall private property be taken for public use, without just compensation.")

This omission is not unique. There is no mention of privacy in the Canadian Constitution Act (1982) or in the Canadian Charter of Rights and Freedoms (1982). Nor is this subject addressed in the corresponding European documents such as the Treaty of Rome (1957), which established the European Community, and the Treaty of the European Union [Maastricht Treaty] (1992), which established the European Union. What about the United Nations? Both the original Charter of the United Nations (1945) and the International Covenant on Economic, Social and Cultural Rights (1976) are completely silent with respect to a right to privacy.

In fact, of all the constitutions I examined, there was only one that guaranteed any type of right to privacy: the Constitution of the People's Republic of China (1982). Article 40, "Privacy of Correspondence", states:

"Privacy of freedom and privacy of correspondence of citizens of the People's Republic of China are protected by law. No organization or individual may, on any ground, infringe on citizens' freedom of privacy of correspondence, except in cases where to meet the needs of state security or of criminal investigation, public security or procuratorial organs are permitted to censor correspondence in accordance with procedures prescribed by law."

Notice, however, the caveat that the people's right to private correspondence is limited by the state's right of censorship (which is legal in China). This explains why the government of China has the right to control Internet usage.

Thus, with the exception of China, the various constitutions and bills of rights for the United States, Canada, Europe and the United Nations make no promise of a right to privacy. Does this mean that such rights are universally ignored?

Not at all. There are declarations that mention some type of right to privacy. These declarations are international statements that fall into the category of we-think-this-is-a-good-idea-so-we-will-sign-it. Unfortunately, none of these statements have the force of law. Still, they embody the basic principle that privacy is important enough to be discussed internationally.

For example, the Universal Declaration of Human Rights (1948) was ratified by the General Assembly of the United Nations only three years after its founding. This document was designed to be the epitome of a human rights declaration, and was based on the U.S. Bill of Rights (1791), the English Magna Carta (1215), and the French Declaration of the Rights of Man and of the Citizen (1789), none of which, by the way, mentions privacy. However, Article 12 of the declaration does address the issue:

"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."

In the same year, at the Ninth International Conference of American States held in Bogota, Colombia, the OAS (Organization of American States) consisting of the countries of North and South America, was formed. At the meeting, the group adopted a document called the American Declaration of the Rights and Duties of Man (1948). Article V of this declaration states that:

"Every person has the right to the protection of the law against abusive attacks upon his honor, his reputation, and his private and family life."

(Remember this the next time someone sends you email blaming you for something you didn't do. When that happens, the best response — in fact, the one recommended by the OAS — is "I know you are, but what am I?")

Years later, the OAS adopted yet another human rights agreement, the American Convention on Human Rights (1992). This agreement was unusual because, for the first time, we see an explicit declaration of a right to privacy.

"Article 11: Right to Privacy

"1. Everyone has the right to have his honor respected and his dignity recognized.

"2. No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.

"3. Everyone has the right to the protection of the law against such interference or attacks."

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What the Supreme Court Has to Say

So, do we have an innate right to privacy? Historically, the answer has been no. Even though a few international agreements (such as the three I just discussed) do mention this issue, most national constitutions and human rights declarations do not recognize such a right. In other words, as human beings, we do not have a right to privacy in the same way that we have rights to "life, liberty and the pursuit of happiness".

Thus, such privacy rights as we might have can derive only from laws and judicial rulings. Unfortunately, the problem with depending on the force of law to protect a basic right is that, unlike a constitution, a law or a ruling is easy to change.

This is certainly the case in the United States, where the basic rights to privacy have been established, not by the Bill of Rights, but by rulings of the Supreme Court. As you might expect, such rulings are controversial and are at risk of someday being reversed. Indeed, most Americans probably don't appreciate that the strongest statements of their right to privacy derive from Supreme Court decisions relating to contraception, interracial marriage and abortion.

The first such ruling, the one that established a right to privacy for Americans, was Griswold v. Connecticut (1965). In this case, the Supreme Court struck down a ban that the state of Connecticut had put on the sale of contraceptives. The Court recognized the existence of a "zone of privacy", and ruled that the government could not intrude into the homes and lives of its citizens.

Two years later, in Loving v. Virginia (1967), the Court asserted that the government could not invade people's lives to the point of banning interracial marriage. (At the time, Virginia law provided that "If any white person intermarry with a colored person, or any colored person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.")

In Eisenstadt v. Baird (1972), the Court invalidated a Massachusetts law prohibiting selling contraceptives to unmarried people. In doing so, they found that both married and unmarried people had a right to privacy that extended to making their own reproductive decisions.

Finally, in Roe v. Wade (1973), the Supreme Court ruled against a Texas law prohibiting all but lifesaving abortions. The Court recognized that a woman has a right to privacy (one that, in this case, extended to her decision as to whether or not to terminate her pregnancy).

Now, think about this carefully. If this "zone of privacy" really exists, if the government's ability to intrude upon our privacy really is limited, does it not imply that a government agency may not, say, install a device to monitor our email and other Internet communications in order to look for evidence concerning someone else's criminal activities? In other words, should our rights to privacy — as recognized by the Supreme Court — protect us against Carnivore (see Chapter 1), the device that the FBI uses to spy on Internet activity?

In the U.S., the right of privacy is not enshrined in the Constitution and, hence, is not paramount.

The answer is no. The right of privacy is not enshrined in the Constitution and, hence, is not paramount. A government agency is allowed to invade our privacy as long as they can legally show a compelling need, such as national security, criminal investigation or public safety. (If this sounds familiar take a moment and look back at the quote from the Chinese Constitution.)

However, our biggest threats to privacy come, not from the government, but from business, and nowhere — in the Constitution or in the essential Supreme Court rulings — does it say that we have the right to keep an Internet marketing company from using our email address without our permission. As a matter of fact, when it comes to establishing such rights by law, we, as individuals, have very little say in the matter.

In order to think about something well, you need to have a basic understanding of the ideas behind the issues. My goal in this chapter is to help you develop a sense of perspective, one that will allow you to render knowledgeable opinions and make decisions wisely. To start, let's consider two interesting privacy-related examples.

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Thinking on a Large Scale

In January 1999, Scott McNealy, the CEO of Sun Microsystems, an important computer company, was being interviewed by a group of reporters and analysts. A few hours earlier, Intel, the manufacturer of many of the electronic components used in PCs, had reversed a decision to put an identification feature into their new processor chips. This feature would have meant that every PC would have a built-in ID number, a social security number for computers. This, in turn, would mean that software could be written to identify you, monitor your actions, and send this data over the Internet to various companies (or the government). Under pressure from privacy advocates, Intel backed down and agreed not to deploy the ID feature in their new processors.

At the time this happened, McNealy was speaking at an event called to launch a new system developed by his company, a system called Jini. The purpose of Jini was to allow various types of computer components and consumer devices to communicate with one another and share information. Such a system, of course, would be bound to raise concerns about privacy. (What, for example, might your VCR have to say to another machine about your video viewing habits?) In light of Intel's surrender to privacy concerns, it was natural for someone to ask McNealy what privacy safeguards his company was planning to build into Jini.

McNealy's answer was one that would, to coin a phrase, live in infamy. After asserting that consumer privacy issues were a "red herring", he told the audience, "You have zero privacy anyway. Get over it."

Think about that. The CEO of a major computer company telling us, "You have zero privacy anyway. Get over it."

At first, it is tempting to think of Mr. McNealy's remark as merely the ill-timed hubris of an arrogant, insensitive Captain of Industry. If so, it would not be the first time that an arrogant, insensitive Captain of Industry has put his mouth in motion before his brain was in gear. Indeed, CEOs of computer companies seem to do so with alarming regularity. (It has to do with the fact that nerds, even rich powerful nerds, tend to see the world as a rational place in which everything can be colored either black or white.)

However, before we pass judgment on McNealy, I'd like you to consider another privacy-related incident. On January 28, 2001, the Superbowl was held in Tampa, Florida. On that day, about 100,000 fans passed through turnstiles in order to enter the stadium and, as they passed through, their faces were scanned and digitized by hidden cameras. Within an instant, a special computer system compared the images to a large number of pictures in the files of the local police, the state police and the FBI.

The equipment to perform the secret spying was loaned to the Tampa police by a company that makes surveillance software. The idea, of course, was twofold. The police wanted to catch bad guys (which they didn't), and the software company wanted to get a lot of free publicity (which they did). Of all the 100,000 people scanned, the computerized system did identify 19 with "significant" criminal histories, but no one was arrested or even apprehended.

Such systems are being used with increasing frequency and are nominally justified as being in the public interest. After all, their purpose is to catch criminals, whether they are actual fugitives from justice or simply unsafe drivers running a red light. Innocent people like you and me have nothing to fear.

When a spy system is deployed where we live, we are, at first, appalled at the idea that a combination camera/computer system is spying on us in public. After awhile, however, we become desensitized to the assault on our privacy, and our expectations change permanently. Spy cameras are just a part of life.

This particular spy system uses a type of BIOMETRICS: technology that identifies people based on specific physical or behavioral characteristics. The general idea, of course, is not new. However, modern biometrics has advanced far beyond the printed fingerprints and mug shots of the olden days. Today's systems can identify people based on a number of different characteristics including:

  • Hand geometry
  • Voice prints
  • Speech patterns
  • Retinal scanning
  • Iris scanning
  • Face recognition
  • Typing patterns
  • Handwriting

Scott McNealy tells us that we already have no privacy and yet I wonder, how gracious would Mr. McNealy be if he thought that his face was going to be scanned covertly in pursuit of an open-ended search for yet-to-be-identified criminals? Might he respond that there is really no reason not to scan everyone? After all, only the guilty need be afraid. Innocent people have nothing to fear from having their faces (or voices or fingerprints or mannerisms) matched against a database of known miscreants. Real life, however, is rarely so obliging, and such arguments are rarely as simple as they seem.

I would like to point out an important dichotomy in McNealy's remarks. It's true that when you and I go out in public we don't have the same rights to privacy as when we are at home. But still, I wonder how quick people like McNealy, who claim that we already have no privacy, would be to support massive secret surveillance in public, when they are among the ones being spied upon.

"We have no privacy?" I feel like saying to him. "In that case, Mr. McNealy, would you mind telling me your social security number, your credit card numbers, the PIN for your ATM card, your home address, your home phone number, your personal email address, and, just for fun, your mother's maiden name? Since you think we should simply 'get over' our lack of privacy, I'm sure you won't mind if I publish this information in a book and on my Web site."

As you can see, I'm not being quite fair to McNealy. Realistically, I do not expect him, or anyone, to furnish me with such information, and if I did somehow find it and publish it in a book or on the Web, you can bet that I would be hearing from his lawyer in less time that it would take the Queen of England to send back a cup of cold tea.

The reason is that CEOs, like politicians, spokesmen and commentators, lead two lives: a public life in which they espouse the interests of their organizations, and a private life in which they act as individuals. When people like Scott McNealy spout off about privacy, they are acting in their official capacity as a representative of an organization whose interests are often at odds with the interests of individuals. In this case, we are dealing with the CEO of a company for whom restrictive privacy regulations would be a significant financial irritation.

When it comes to public debates about privacy, there are many competing and vested interests, and you must learn to pick your way carefully through the fields of misleading verbiage. To be able to do so, you need to start with an understanding of how society carries out its role in protecting our privacy and why it is that individual citizens are rarely the ones who get to frame the debate.

On an individual level, concerns about privacy can be handled person to person, but on a larger scale, it is the groups that have the power. Don't be misled by the idea that, in some sense, all groups are made up of individuals. Businesses and other organizations have lives of their own, independent of the people they employ, and they will defend and advance their own interests as they see fit. As individuals, we have neither the power nor the endurance to promote our own interests on the national or international arenas. We need an organization to defend and represent us, and that organization is our government.

You and I can say anything we want and do anything we want but, when the whistle blows, we are on the sidelines. The large-scale, societal battle over privacy issues is a battle of titans, one in which the government, for better or for worse, is our gladiator.

Thus, when it comes to the politics of privacy, the balance between business and government — how much power the government has compared to business — is crucial. Although the Internet is a global community, we must recognize that what we think and what we see depend very much on the culture of our own country. If we live, for example, in the United States, it is a startling thought to realize that most everyone in the world sees the government's role in privacy issues much differently than we do. Here is why.

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The American Frontier

Many people have strong opinions as to how power should be balanced between business and government. Talk to such people and you will rarely notice any originality in their opinions or their reasoning. Why? Because the plain truth is that, as much as we like to think that our opinions are our own, most of what we think is absorbed from the society in which we live. Although we do our best to conjure up ingenious and rational reasons for why our way of thinking is best, we are shaped by our culture more than we like to admit.

This is especially true when we listen to people opine and argue about privacy issues: should the government tell business what to do, or should we keep the government from interfering? What we hear depends very much on the culture of the person doing the talking. If we want to penetrate to the inner core of such issues and decide for ourselves what is best, what action, if any, we should take, we need to strip away any cultural bias we might be masquerading as rational thought. Toward this end, I would like to explain why people in the United States seem to look at privacy issues so differently from people in other Western countries.

The United States was formed from thirteen English colonies on the east coast of North America. The defining event was the American Revolution, which took place over twelve years, from 1775 to 1783. The spirit of the revolution was embodied in the Declaration of Independence, drafted by Thomas Jefferson and ratified on July 4, 1776. The most well-known statement from this document asserts that:

"...all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness..."

At the time that Jefferson drafted the Declaration of Independence, the American colonies were governed by England and ruled by King George III, a situation that the colonists bitterly resented. The laws under which the colonists lived were English, and as such, were derived from the body of English common law, the well-developed system of customs and precedents that evolved in England over many years.

However, the conditions in the New World were much different than those in the mother country. England was settled and had been for years, with well-established cities, towns and cultures. The colonies, on the other hand, were a frontier. As such, the inhabitants had a significantly different outlook than the people in England who were making and enforcing the rules.

These qualities gave rise to the uniquely American attitude that, even today, colors their attitudes towards all aspects of life (including the Internet and privacy). To appreciate this attitude, we need to understand the conditions in the frontier in which the American personality was forged.

The frontier of which I speak had three salient characteristics. First, it was open, with unlimited opportunity. The first part of America to be settled was the east coast, and as it became more settled and citified, the frontier obligingly moved westward. Thus, for many years, America was a land of opportunity, a place where an enterprising individual or group could always find room for themselves.

Second, the American frontier was a wild, dangerous untamed country in which nature was a dominant force and people were required to fend for themselves. The native people, who had been there for centuries, were seen by the explorers and settlers as being savages, which only added to the danger. Because of this, early settlers were forced to protect themselves and were on their own when it came to carving a living out of a difficult, inhospitable land. There were no policemen or lawyers to guard them or protect their interests. Compared to their cousins in England, Americans were free, unconstrained and self-policed.

This led to the third characteristic of the frontier, a strong sense of privacy. When you have to fend for yourself, you quickly develop the attitude that what you acquire is yours and yours alone, and no one, not even the government, has the right to intrude upon your privacy without your permission.

Early America was dominated by two types of settlers: the adventurers, who were looking for something new and were not afraid to take a risk, and the desperate people with no other place else to go — the exiles, the orphans, the oppressed and the criminals, including those who had been unfairly convicted. (The state of Georgia, for example, was originally a prison colony.)

The American settlers found that, to survive, they had to develop the characteristics of successful frontiersmen. They had to be strong of mind and body; they had to be independent, healthy, daring, and ambitious, with a great deal of initiative. The conditions that required such traits made a lasting mark on the American psyche. Even today, with the frontier long gone, these characteristics are still the ones that Americans revere.

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Why Americans Are Cowboys

As a general rule, legal traditions are based on the needs of the people at the time the laws are established. After the revolution, the break from England allowed the newly formed country to also break from rule of English law. A new body of American law developed to suit the needs of a country with enormous potential in which the frontier mentality was dominant. The demands of the frontier led to laws that favored individual rights and individual initiative. In this way, American legal traditions came to support independence, privacy and self-reliance, and the American culture grew to value such traits.

Here is an interesting example, one that you might remember the next time you listen to people discussing how the Internet should be policed. In England, if you were faced with danger, the body of common law (that is, the legal precedents and customs) held that, regardless of who was right and who was wrong, you were limited as to when you might legally defend yourself. Before you could hurt or kill another person, you must first try to flee. If this were not possible, you should back up and do your best to avoid a conflict. It was not until your back was against the wall and you had no other alternative that you were allowed to take action.

This, of course, is a rather civilized way of dealing with anti-social individuals. When you live in a country that has been settled and developed for a long time, you can't have people going around shooting other people just because they feel threatened.

In America, the situation was different. There was a new frontier to be explored and conquered, and there was no one out there to defend you. If you felt threatened, there were no policeman to call for help and nowhere to run to safety. (When you are out in the wilderness, there is nowhere to go except more wilderness.)

For this reason, the early American legal system developed to codify the type of adventurous and self-sufficient behavior that was necessary to survive and flourish. American law held that, as long as you were in the right, you were allowed to stand your ground and defend yourself, even if it meant killing the person who was threatening you. (After all, how can you ask someone in danger to wait until their back is against the wall when there are no walls?)

As we look back at American history, we recognize the strength and success of the men and women who settled and developed the country and, like everyone else who looks back in time, we idealize. Through the lens of history, we see a frontier of limitless possibility, populated by cowboys (the good guys) and desperadoes (the bad guys).

If you are not American, it's hard to understand the worship of the cowboy mentality.

Most of all, we admire the cowboys, whom we imagine to be rugged frontiersmen of the highest caliber. If you are not American, it's hard to understand the worship of the cowboy mentality. However, without such an understanding, it's impossible to make sense out of the balance of power between business and government, which is a prerequisite to understanding the politics of privacy as they are applied to the Internet.

To help you appreciate this aspect of the culture, I would like to quote the American writer Ben Stein. When I was in graduate school, in 1978, I read an essay Stein wrote for the Los Angeles Herald-Tribune. The essay, "Why America Needs Cowboys", gives advice to college students as to what it takes to be successful in America. Listen to Stein as he explains the idea of what cowboys mean to America:

"Cowboys are the essential symbol of what is great about America. They rode around all day on their horses, without any limitation on what they could do, or where they could go. They lived without restraints on their imaginations or their accomplishments. They lived in an America that valued getting things done, building, creating, molding a refuge for all the oppressed of the earth, an America where the freedom of the individual included the freedom to take whatever a man could by fair means and the sweat of his brow, and make a refuge for him and his family."

Over the years, the cowboy mentality has taken root in America, where it has flourished and been transformed into the American Dream, the idea that, by working hard, anyone can create a happy and successful life.

This has left the United States with a double legacy: first, a society that worships the individual and second, a society that demands as much freedom as possible for individual expression.

Americans tend to think of this as a fact of nature. However, if you compare this cultural attitude with that of other countries, you will find a marked difference. In Japan, for example, individuals are expected to submerge their personalities and personal desires to the well-being of the group. The Japanese have a saying which is endlessly drummed into every young schoolchild as a guide to social behavior: Deru kugi ha utareru ("The nail that sticks out is hammered flat"). Compare this to the American aphorism, "The squeaky wheel gets the grease."

But the American legacy consists of more than a cult of the individual. There is also a marked antipathy toward government intervention in one's life. This is understandable. After all, this is a country, born out of rebellion against a monarchy, with a national psyche that was forged in a crucible of self-reliance.

Because of this, the United States, unlike other countries, has a particular vulnerability when it comes to privacy, especially regarding computers and the Internet. What does a nation that worships cowboys do when the cowboys get out of hand?

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Have the Cowboys Run Amuck?

The United States is a country where, as a general rule, every generation of children has done better than their parents. Why is this? Ask an American and he'll tell you that it is because America is the land of opportunity, a place where, even today, the frontier mentality is dominant and, in principle, anyone who works hard can become successful.

Americans are proud of their country and of the opportunities it offers. After all, no lesser authority than the U.S. Declaration of Independence asserts that people everywhere have the unalienable right to pursue happiness, and in the United States, that means the freedom to pursue the American Dream. For this reason, Americans are reluctant to put limits on how successful a person can become. As long as someone does not break the law, there are no limits as to how much wealth he can accumulate or how much he can own.

However, in this world, the real wealth and power does not lie with individuals; it lies with organizations: corporations and governments. This is an important point that I want you to understand. Although there are many wealthy people, their riches are nothing compared to the wealth of the corporations. Similarly, even the most powerful people owe their power to their position with some organization or other.

For example, the President of the United States is sometimes called the most powerful person in the world. Yet watch what happens when a President leaves office. His power fades away faster than the love of a pregnant woman whose husband has left her in the middle of the winter to play golf in Florida. The same goes for the executives of large corporations. Over the years, I have seen many "powerful" executives leave their companies, only to fade away, never to be heard of again. Meanwhile, the new executives, the ones who have taken their places, are now wallowing in the trappings of power and influence.

What about wealth? Yes, there are a great many rich people, but the plain truth is that their wealth is dwarfed by the amounts of money that corporations manipulate routinely. Indeed, the wealth of many companies is so large as to be beyond the comprehension of most people.

How can we measure the economic size of a company? One common way is to consider the company's market price or CAPITALIZATION. This is calculated by multiplying the number of outstanding shares by the price per share. In the world of finance, a company is considered small if its capitalization is less than $250 million. Think about that: a company can be worth up to $250 million and still be considered small! A company is not considered large until its market price grows above $1 billion.

Another way to measure wealth is to look at earnings and revenue. In the year 2000, IBM earned $8.07 billion on revenues of $88.4 billion. Its capitalization (at the time I am writing) is $200.2 billion. In the same period of time Microsoft earned $10 billion on revenues of $23.85 billion. Its capitalization (again, at the time I am writing) is $331.9 billion. How about one more? In 2000, the Coca-Cola Company earned $2.18 billion on revenues of $20.46 billion. Its capitalization is $150.3 billion. (To put this in perspective, how much money did you make in 2000?)

With this much power and money, you can understand why companies have more influence than individuals. Now put this together with the belief that, in America, the right to engage in business should be unfettered, and you can begin to understand why we live in a world in which we must defer so often to the will of corporations.

One of the big mistakes we make is confusing individuals, who have unalienable rights, with companies, whose only rights are those granted by law. As I explained earlier in the chapter, corporations have lives of their own. They will do whatever they need to advance their own interests and, unfortunately, much of the time, their interests conflict with those of human beings. When this happens, the corporations usually get their way.

All too often, corporations run amuck when it comes to respecting the rights and preferences of individuals. In particular, there are many large companies that have personal information about us, who are willing and able to share that information with other companies to advance their own interests. No matter what anyone tells you, the business of a corporation is (1) to protect its own existence, and (2) to make money in ever-increasing amounts.

So why can't we stop them? There are two main reasons. First, large companies have resources that individuals do not. They have money, political influence, public relations departments, lawyers, and so on. They also have persistence and longevity. If you have ever tried to fight a large company — or even get them to make an exception for you — you will quickly realize that they have significantly more resources and staying power than you do. Moreover, unless something terrible happens to kill a company, it is effectively immortal. For example, IBM and Coca-Cola existed long before I was born, and I expect they will continue to exist long after I die. (Microsoft was founded during my lifetime, but I confidently expect it to outlive me.)

The second reason we can't stop companies from trampling on our rights is that we voluntarily let them get away with a great deal because of misguided thinking. This is especially true in the United States where a successful CEO — a Captain of Industry — is seen as the modern counterpart to the cowboy, and the last thing anyone wants to do is limit the cowboys.

Americans believe that individual freedom, especially the freedom to pursue happiness — especially by going into business and making a lot of money — is what makes America great. Where we make our mistake is in treating corporations as individuals, and assigning them the same rights and privileges — and consideration — that we do to other people.

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Why We Let Them Get Away With It

The reason we make this mistake — and it is a serious one — is because human beings have a tendency to anthropomorphize. That is, we tend to look on non-human entities as if they have human characteristics. Anyone who has ever had a dog understands this idea. How many times have you treated your dog as if it were human? (Cats, of course, are different.)

With respect to companies, we all too often think about them as if they were human. Often, we will talk about the head of the company as if he or she were the company itself. In writing, there is a name for such a substitution. It is called METONYMY ("me-tawnŽ-imee"). An example of metonymy would be to use the name of a capital city to represent the political leadership of that country. You hear this a lot when you listen to the news. ("Today, Washington opened preliminary talks with Moscow regarding the price of groatcakes.")

When used in this way, metonymy is innocuous. After all, nobody really believes that a city can talk. It's just a metaphor. However, when we talk about, or even think about, a corporation in a similar manner, our thinking invariably goes astray. For example, it is common for people to talk about the head of a company as if he or she is the company.

Let me mention one common example, and I am sure you will understand what I mean right away. In the world of computers and the Internet, Microsoft is a very important company, so it only makes sense that people who use computers will often talk about Microsoft. Now, we all know that Microsoft was co-founded by Bill Gates, who to this day, remains its chairman and single-largest shareholder (not to mention the richest person in the world).

The mistake that we make is in thinking that Bill Gates is Microsoft, and assigning to the company the respect and consideration we would show to a successful human being. Now, anyone in the computer business has opinions about Microsoft. (Actually, just about anyone who uses a PC and Windows has an opinion about Microsoft.) It's not hard to find people who will be glad to offer forceful opinions, good and bad, about Microsoft and its products. This is only to be expected: computers are important to us and, in many areas of personal computing, our tools are controlled by Microsoft. However, Microsoft is not Bill Gates, and blurring the line between the person and the company only serves to make the real issues harder to understand.

Consider this example. Starting in the early 1990s, Microsoft has been investigated by various U.S. government agencies for unlawful conduct relating to its monopoly in certain areas of personal computing. Several antitrust-related lawsuits were filed by the U.S. Department of Justice and other government departments and over the years, these suits have wound their way through various courts.

From time to time, I have been a guest on national radio shows in order to discuss and debate the issues related to the Microsoft antitrust lawsuits. I often found that listeners would call in and express the opinion that the government should leave Microsoft alone. Many people honestly felt that the Department of Justice was, for some reason, conducting a personal vendetta against Bill Gates.

The real issue, of course, is the criminal conduct of the company. However, to many people, Bill Gates is the company, and a large number of listeners saw this as a conflict between big government and a single individual. I was astonished at how many people honestly believed that the lawsuits were an attempt by out-of-control government officials to "punish" Bill Gates for becoming too successful. "Just leave him alone," they would say. "It's not fair for the government to go after one guy just because he is so successful."

Do you see what is happening here? Because Americans value the spirit of the entrepreneur, and because it is human nature to anthropomorphize organizations, many people think of Microsoft as if it were a person. This is a mistake that companies will go to a great deal of trouble to exploit. For example, a company in trouble will often cloak itself in the mantle of personality.

Microsoft, for instance, did nothing to discourage people who believed that the government was picking on Bill Gates. Indeed, the company put a lot of effort into casting the conflict as one in which overzealous government attack dogs were attempting to stifle the freedom of Americans to innovate. In a letter to shareholders dated May 1, 2000, and signed by Gates and Microsoft President Steve Ballmer, the company asserted that:

"The dismantling of Microsoft also would send a signal that companies in America that are 'too' successful will be punished harshly — a signal that will be welcomed by foreign competitors seeking to overtake America's global leadership in technology."

The facts, however, are different. First, the Justice Department is not picking on Microsoft. The company did break the antitrust laws. They did it knowingly and repeatedly and, as such, are guilty of criminal conduct. (This is Microsoft I am talking about here, not Bill Gates as an individual.)

Second, antitrust lawsuits are not at all unusual. If you visit the Web site of the U.S. Department of Justice, you can browse a list of all the pending antitrust actions. Right now (as I am writing this) there are 521 separate antitrust investigations. Microsoft is hardly unique.

I am not discussing this controversy at such length in order to explain the legal issues, which are complex. Rather, I want you to see the situation for what it is, a striking example of how easy it is for people to let their feelings get in the way of their judgment.

The Internet, as a whole, is mostly unregulated. However, it is becoming clear that we do need some regulation, especially when it comes to privacy concerns. And yet, as much as you might dislike the thought of having rules that govern the use of the Net, companies dislike the idea a lot more.

In a sense, the Internet is a frontier, and on a frontier you need cowboys more than you need regulations. However, don't be fooled. During the time that America was first being settled by Europeans, the work was done by individuals, and there is only so much damage one individual can do. The Internet frontier, however, is being developed more by companies than by individuals, and when a powerful company rolls up its sleeves and gets down to it, it can create a lot of problems.

It is important for us to see corporations for what they are: large, powerful entities that care more about themselves than they do about us. This is not to say they are malevolent. Nor do I assert that companies are run by evil people. What I do say is that we must recognize that our needs, as individuals, are often opposed to those of the corporations, and the corporations will not hesitate to do whatever they can to advance their own interests at our expense. They are just acting according to their nature.

This is especially true when it comes to matters of privacy. Many people want control over their personal information and how it is used. Companies, however, want complete freedom to use data in any way that suits their purposes and, they are perfectly willing to resort to heavy handed methods in order gather that data. Once this happens, we become more and more defenseless against the very companies who we have been so quick to support when they plead for us to allow them unfettered control over our computers and our data.

Do you think I'm exaggerating? Just think back to the last time you called a company's customer service number and asked them to do something for you that was disallowed by their computer system. How many times have you heard, "I'd like to do that, but it's against our policy," or "The computer won't let me give you a credit in that way." If you have ever had a problem with a plane reservation, a phone bill, an incorrect credit card charge, or a mishandled order of some type, you know exactly what I am talking about. Most companies have organized themselves, very carefully, to make us accommodate their needs. It can't have escaped you that, within a company, the people who work there are also powerless against the corporate system. Regardless of whether we are on the inside or the outside, all of us live under the tyranny of the "system".

But, I hear you ask, aren't there any rules? Isn't anyone going to tell the corporations of the world (and of America) that people come first, that they must respect our right to have control over our personal data?

Yes, there are rules, and as you will see in Chapter 7, they have been adopted by no less an organization than the General Assembly of the United Nations.

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