The Ethics of Voting, Part II

I’ve often heard the following asked in response to political complaints: “if it bothers you so much, why don’t you run for office and change it?” Imbedded in this sentiment is the idea that individuals have the ability to right wrongs in the political realm, and can do so by taking concerted action. A related sentiment, often paired with the former, is the idea that any man, no matter how obscure or humble, has the power to change the world. Let’s suppose that the democratic system works as it ideally should: each individual has a fair stake of the vote and an open chance to run for political office. But let’s also observe one of the inevitable consequences of the political world: political parties. These political parties hold standardized ideologies, and politicians running under those banners associate themselves strongly with those ideologies. In any case, it’s enough for our purposes that most politicians run under established political banners. This system, I hope to suggest, is problematic. Specifically, it undercuts the idea that any individuals, holding any ideology, can bring about real change, an idea that seems essential to the moral legitimacy of democracy.

Imagine the following scenario. In a given election, candidate A, a Democrat, gets 49% of the vote, and candidate B, a Republican, gets 51% of the vote. Thus, candidate B (along with his political ideology) has been selected over candidate A. Now, imagine that candidate C, a Democrat, runs against candidate B in the successive election and defeats candidate B, a Republican, by a margin of 51%-49%. The Democratic party was able to sway the political realm, and thus the prevailing political ideology, with a 2% alteration in vote outcome. Now, let’s imagine that an Anarchist party ran a candidate on the platform of the abolition of government. This party, if we compare it with only the Democratic party and the Republican party, would need to get 33.33%+1 of the vote to achieve victory and instill its political ideology, which would require a 33.33% swing in voter opinion. Clearly, the Anarchist has his work cut out for him if he wants to affect change with the political system.

Some people might think that this feature of the two-party system is a good thing. Perhaps the point is to keep the fringe radicals out of the mainstream, while permitting the ideologies that most people find most persuasive to duke it out. Yet we cannot hold this view, along with the imaginary scheme from which we would derive it, and the belief that the political process presents opportunities for all. Though, in theory, any individual has the open opportunity to toss their hat into the ring, it’s abundantly clear that individuals presenting unpopular ideologies, no matter how morally upstanding and practically efficacious they may be, are strongly disadvantaged if they wish to use the political system to express their convictions to bring about change. Far from being a useful feature of democracy, this consideration shows us just how immoral the state itself it: one of its primary mechanisms of inclusion and change holds many of those who would like to participate on the outskirts of the system. Though nobody’s suggesting that each and every person should be able to run for office and just by that fact should be able to take office, I am suggesting that the beneficial freedoms that are often claimed to run from the institution of voting in reality do no such thing.

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The Ethics of Voting

I often hear it said that voting is a social duty. Many people think that voting, as a fundamental building block of the democratic system that dominates Western society, is not only a moral right, but a moral obligation. Yet, like most ideas invoked with a patriotic purpose, the institution often goes unargued for, deriving its moral impetus by appeals to tradition. The mere fact that a social institution goes unchanged for a significant period of time should, I think, have no bearing on whether or not that institution ought to continue into the future. Thus, in the article that follows, I will try to sketch an argument to the effect that voting as an institution entails a violation of rights.

I take as foundational the claim that the existence of the state entails the state’s violation of individual rights. If we define theft as an action by which A takes something that belongs to B without B’s permission, it follows that taxation is theft. When the state taxes an individual, they take something that belongs to that individual without that individual’s permission. Though many give reasons purporting to say why the institution of taxation is morally justifiable, I take it as obvious that some kernel of immoral behavior persists, even if philosophers can think of good reasons to justify the institution. The mere fact that philosophers must reach so far to provide such a justification should appear as a red flag to the skeptical mind. And, if we accept the preceding claim, we should also accept that the state must violate rights in order to exist. A state cannot exist without taxation; taxation entails that individual rights are violated; therefore, a state cannot exist without violating individual rights.

Yet it’s natural to worry that I am smuggling in an unjustified assumption: that it is wrong to do to A what A does not choose to have done to himself. If A accepts the benefits of some state good, say, the national highway system, doesn’t this give the state the right to draw funds from the individual to ‘recoup’ the money that they have spent on him? Many find this intuitive; I do not accept it. I think it is just not the case that it is true. Robert Nozick argues against this point in Anarchy, State, and Utopia:

On the face of it, enforcing [this view] is objectionable. You may not decide to give me something, for example a book, and then grab money from me to pay for it, even if I have nothing better to spend the money on. … One cannot, whatever one’s purpose, just act so as to give people benefits and then demand (or seize) payment. Nor can a group of persons do this. (95)

In other words, it is morally impermissible for A to provide B with a benefit and then force B to repay the debt created. For A to have the moral authority to demand compensation would entail that B was obligated to compensate. Yet I don’t think it’s the case that B should be obligated to A in any way. B did not choose to have A’s benefit, and B may very well have preferred to have some other better (in his eyes) benefit. In other words, by forcing B to have a benefit that he doesn’t choose to receive, A precludes B’s having the sort of benefit that he really desires. Suppose that A thrusts a philosophy text at B where B would prefer to read a Dostoyevsky novel. This highlights the importance of individual choice in moral considerations. We should not force people to accept the benefits of taxation and then tax then further to pay for the benefits, since individuals may prefer other, equally valuable sorts of leisure.

Let us now consider the institution of voting. When a person votes, what does he vote for? We may point out that the purpose of voting is to select one’s preference of a candidate for some public office up for the winning. However true this may be, I think that we must also interpreting the act of voting as lending support to the institution of government itself. If A thinks that B should be mayor, it follows logically that A thinks that someone should be mayor. And, if A thinks that someone should be mayor, it must entail that A thinks that the object of the mayor’s job — the state — should exist. Let us now recall our previous argument that a state cannot exist without violating individual rights. If this is true, then, if A believes that the state should exist, then A also thinks that individual rights should be violated. If A supports the notion that a coercive structure should govern society, he intends that coercive structures should happen. Yet, since I have shown that we should not violate individual rights, it seems that I have also shown that we should not actively indorse institutions that violate individual rights.

Therefore, the act of voting itself is immoral, since to vote is to intend the violation of individual rights, an intention which is immoral. If A would want to bring it about that individual rights are violated, it follows that he would want to cause the violation of individual rights, which is surely morally wrong. So where has this whole discussion left us? Is it really immoral to vote? I think we ought to conclude this, given that we have reached this conclusion with sober logic, not patriotically-charged emotion. Although several of my premises are far from uncontroversial, their difficulties have been laid out clearly and, even in light of these objections, they have continued to be plausible by our lights. Indeed, my conclusion is more plausible than the majority of rationales that people give for voting, in that it is based on reason and not platitudes. So, I conclude that we ought not to vote. Voting expresses support for an immoral institution, which we ought not to do. The fact that some social arrangement can bring about an easier life for some people does not entail that we ought to hurt others in order to bring it about.

Reference:

Nozick, Robert. Anarchy, State, and Utopia. New York: Basic Books, 1974.

Liberty and Rawls’ Utilitarianism Of Rights

In political discourse, it’s common to hear pundits and average people exalt the doctrine of universal liberty. In American rhetoric, no concept is evoked so strongly and so frequently, and so incorrectly — or so I will claim. Indeed, though this principle supposedly forms the foundation of all ethical and legal precepts in the American social corpus, most politicians (and philosophers) pay it mere lip service, preferring to advocate for the violation of individual rights in the name of practical expediency.

John Rawls, one of the most esteemed voices in political philosophy in the past century, makes this mistake to a staggering degree. In A Theory Of Justice, he asserts something like what he sees as the relationship between justice and freedom: “Justice denies that the loss of freedom for some is made right by a greater good shared by others” (28). Individual rights, on this conception, are inviolable and may not be sacrificed for any cause, no matter how virtuous and expedient it may be. Rawls then asserts his first principle of justice, which defines how he thinks moral interactions would best be governed in society: “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others” (60).

Rawls thinks that individual rights are inviolable such that if any action would lead to a large violation of rights (say, a bomb detonated over a major city would kill a hundred thousand people), it is permissible to violate the rights of one person (say, torturing and killing a terrorist’s family members in order to coerce him into giving up the location of the weapon) to ensure that the greater violation of rights does not occur. After all, isn’t it better that three people’s rights are violated than to have a hundred thousand people’s rights be violated?

This position constitutes something like a “utilitarianism of rights” (Robert Nozick’s phrase, Anarchy, State, and Utopia p. 30), under which we should calculate the expected amount of rights violations that can occur in any number of possible situations, and then choose the one that has the lowest overall violation of rights, even if doing so would require us specifically to violate the rights of others. Rawls advocates this position very explicitly: “…the delegates to a constitutional convention, or the members of the legislature, must decide how the various liberties are to be specified so as to yield the best total system of liberty. They have to balance one liberty against another. The best arrangement of the several liberties depends upon the totality of limitations to which they are subject, upon how they hang together in the whole scheme by which they are defined” (203).

Yet Rawls, seemingly echoing the statement quoted earlier regarding the inviolability of individual rights, says: “Greater economic and social benefits are not a sufficient reason for accepting less than an equal liberty” (207). In my mind, this view and the “utilitarianism of rights” view ascribed to him in the preceding paragraph are fundamentally incompatible. On the same page in A Theory Of Justice, Rawls says “…their freedom would be subject to the calculus of social interests and they would be authorizing its restriction if this would lead to a greater net balance of satisfaction” (207). How exactly are we supposed to respect the inviolability of individual rights if we may enter individual rights into a social calculus where they can be overruled if deemed expedient? Even if a hundred thousand people can be saved from certain death by the violation of the rights of some other parties, no matter how few they may be, it does not change the fact that the rights of the third parties are still violated. No matter how nicely this fact is dressed up with philosophical speculation, it still remains the case.

If the “utilitarianism of rights” view seems plausible to you, you’re certainly not alone. Yet, if you hold that view, you surely cannot invoke Kantian conceptions of moral permissibility as the bedrock of your theory, on pain of inconsistency (Rawls does this, on page 179-180 of A Theory Of Justice). Rawls interprets Kant’s Categorical Imperative with the following content: “To regard persons as ends in themselves in the basic design of society is to agree to forgo those gains which do not contribute to their representative expectations” (180). Yet surely Kant’s claim that we ought to never use others as means to other ends is contradicted by that statement. Individuals who can gain more for themselves are obligated to forgo those gains if doing so is not to the benefit of others. What about this respects the individual rights of those who can gain more? Rawls’ discussion, and similarly any others that would agree with it (and there are many!) rest upon shaky theoretical grounds.

Reference:

Rawls, John. A Theory of Justice: Original Edition. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 1971.

The Naturalistic Assumption In Bruce Waller’s Denial Of Moral Responsibility

Most of our commonsense moral intuitions are supported by a theory known as moral responsibility: the idea that we can be morally blamed or praised with respect to the moral actions that we undertake. On first pass, this not only seems like an obviously true thesis but also a thesis that is incredibly important in our everyday lives. We want to be recognized for our talents on a deep, meaningful level, and we want those who hurt others to experience the consequences that they seemingly deserve. Human psychology seems to be programmed to attribute responsibility to moral agents in the world, and our social institutions are founded on the concept of praising hard work and blaming vice.

Yet there are many philosophers who doubt that we can ever justly be held morally responsible for anything that we do, whether good or bad. Bruce Waller is one of these philosophers. In his eloquent book Against Moral Responsibility, he lays out his case in favor of the abolition of moral responsibility:

Naturalists who reject moral responsibility agree that miraculous self-making powers are necessary for moral responsibility and conclude that because naturalism leaves no room for such powers, it thus leaves no room for moral responsibility. (20)

The fundamental naturalistic argument against moral responsibility is that it is unfair to punish one and reward another based on their difference acts, because their different behaviors are ultimately the result of causal factors they did not control… (22)

Consider two people, Karen and Louise, performing an act of moral significance: as an example, they are confronted with a situation in which thsir supervisor is about to make an overtly racist hiring decision, and they must object or acquiesce, knowing that a strong objection will probably block the racist decision but will also have a chilling effect on their career advancement prospects. Both Karen and Louise are intelligent persons, capable of deliberation; both are ambitious; both find racism morally repulsive; both are competent… Karen takes a courageous stand against this racist act, and Louise meekly acquiesces… (24)

When we look deeper and longer at exactly how their characters (including both strengths and flaws) were shaped, we find (if we renounce miraculous self-making powers) that their characters were the product of causal forces that neither woman controlled or chose. Karen is more reflective, and perhaps more deeply committed to her non-racist values; she has a much stronger sense of self-efficacy… Karen isn’t “just lucky” to have those characteristics; she has nurtured them through her own efforts. But her capacity to nurture them and the rudimentary powers that were there for the nurturing and further development were not there by Karen’s choice and were not under her early control… Now compare Karen and Louise, with the deep understanding of how their vices and virtues were shaped. If it fair to treat Louise worse and to subject her to blame and perhaps punishment for an act she could not have avoided? (26-7)

The central claim of [Against Moral Responsibility] is that claims and ascriptions of moral responsibility are unfair: it is fundamentally unfair to give special praise and reward to some and to blame and punish others. It is unfair because the differences in our characters and behavior are the result of causal forces that we ultimately did not choose and did not control. (28)

A powerful case it is. If we are to hold anyone morally responsible and are to do so on a fair basis, it ought to be the case that they actually freely chose to do the act that the ascription of responsibility would refer to. If the volumes of social psychology research on the power of the situation and conditioning in determining what we will do in a given situation are correct, then it seems that nobody ever freely choses to do anything. Therefore, it is unfair to blame or praise anyone for their moral actions.

As someone who considers himself a pretty ardent naturalist, I find this argument to be persuasive. Yet I also think that naturalism, as Waller construes it, may rest upon some dubious metaphysical foundations.

Waller rests his entire project upon the naturalistic worldview. He doesn’t give an explicit definition of what he takes naturalism exactly to be, but on the basis of his description of the evolution of the moral strike-back impulse (12-13) and his intermittent discussions of the works of psychologists and neuroscientists (Seligman, Libet, Zimbardo, Rotter, and Milgram are just a few), we can probably describe it as amounting to an eclectic combination of Darwinian evolutionary biology, hard physical laws, and psychological determinism.

If this analysis of Waller’s naturalism is correct, then it’s very easy to see how the rejection of moral responsibility follows. Yet before we accept this worldview as our starting point, we should ask: is it certain that this is the case? Are the laws of the universe really deterministic in the way that Waller thinks they are? Can we really know that the naturalistic worldview is correct? I’m not as sure as Waller is. The way I see it, if determinism weren’t true, there’s a good chance that we would still be justified in believing that it were true. If we acquire all of our information about the external world via our senses, then it would seem that we can only come to learn things about that external world that we experience throughout our lives. Yet Waller continuously refers to what he calls “miraculous self-making powers” throughout Against Moral Responsibility; specifically, he believes that it’s obvious (in light of the social psychology he relies on so heavily) that we don’t have these sorts of powers. Yet it’s hard to see where in the physical world it is certain that we don’t. Perhaps some all-powerful force fools all humans into perceiving the genesis of human action as located in one’s predetermined character and environment, while in reality all humans have original creative authorship over their lives (in a sort of reverse epiphenomenalism). Though the scenario is clearly improbably, it strikes me as possible, and furthermore irrefutable by the precepts of the naturalistic worldview — whose inquiry is necessarily limited to only observable phenomena.

If all of this is true, then it seems that the naturalist should adopt a healthy dose of agnosticism about the nature of our world in their worldview, and therefore a healthy dose of agnosticism about moral responsibility. We can’t know whether or not the naturalistic worldview is correct (because of the possibility of epistemic deception), so we can’t know whether we should abolish moral responsibility in light of naturalism. For what it’s worth, I personally buy into naturalism, and I think that naturalism is the most realistic possible worldview out there, so Waller’s book has persuasive force within me. Yet I am also not so sure that naturalism is irrefutably certain, so I’m inclined to side with Waller, but to do so with a grain of salt.

Reference:

Waller, Bruce. Against Moral Responsibility. Cambridge, Massachusetts: The MIT Press, 2011.

The Buddha On Proper Knowledge

In my time studying philosophy at Rutgers, I’ve heard a lot of arguments about a lot of things. I’ve heard an instructor try to convince the room that time doesn’t exist. I’ve had a professor claim that there might be a little elf in a door hinge that makes it squeak (not the lack of lubrication in the joint). I have heard an argument that death is not really bad for the one that dies. What all of these far-fetched claims have in common is that they, despite being highly intuitively implausible, can be the subject of a decent philosophical defense. Indeed, the stated purpose of this blog is to ask these sorts of questions.

Yet those who would make outlandish philosophical claims often forget that philosophical arguments must inevitably answer to that one timeless, unflinching standard: reality. Indeed, philosophical claims, no matter how logically sound they appear, are worthless in our everyday lives if they do not explain or cohere with our experiences as we live them. Needless to say that much of mainstream academic philosophy ignores this precept and studies strange issues in excruciating detail — yet these teachings are virtually worthless for average people looking for some help through a tough situation. If the philosopher is to be relevant outside of his ivory tower, he must speak to the real world. Think whatever you want to about his works, or religion in general; the Buddha was a philosopher who understood this point deeply:

Just as a person — having been pierced by an arrow thickly smeared with poison, and his friends and relatives having procured a surgeon — might speak thus: ‘I Will not have this arrow withdrawn until I know whether the person who wounded me is either a nobleman, a Brahmin, a merchant-farmer, or a worker.’ — or might speak thus: ‘I will not have this arrow withdrawn from until I know whether the person who wounded me has a certain name and a certain clan.’ … [T]his person would still be ignorant of those things and then that person would die… (97-8)

So according to this metaphor, when faced with situations in which we need to act, we would only do harm by worrying about abstract issues that cannot be understood. That much should be obvious. However, what can be said of knowledge, practical though it may be, gained with unwholesome intent? The Buddha realized that a wise, learned person could nonetheless use that knowledge for inappropriate purposes. Suppose that a person goes through life acquiring massive amounts of book knowledge about every topic imaginable, yet has no desire to use that knowledge as a means to better himself. On the contrary, he wants to use the knowledge to bring other people down in debates and make himself look better. The Buddha puts it metaphorically:

Just as a person walking about seeking a water snake, going after a water snake, searching for a water snake were to see a large water snake and were to take hold of it by its coil or tail. That water snake, having turned back, might bite that person’s hand, arm, or another of that person’s limbs. As a result, that person might die or experience pain akin to dying. What is the reason for this? It is because of the wrong grasp of the snake.

In the same way, some misguided persons study the dhamma, including the discourses, the chants, the explanations, the verses, the sayings, what has been said, the birth stories, the marvelous teachings, and the miscellaies. But having studied the dhamma, they do not examine the meaning of these teachings with intelligence. And these teachings that have not been examined with intelligence are accepted without comprehension. Instead, they study the dhamma for the purpose of criticizing others and for the purpose of merely quoting; so they do not achieve the good result, for which purpose the dhamma ought to be studied. These teachings that are poorly grasped lead to harm and suffering for a long time. What is the reason for this? It is because of the wrong grasp of the teachings. (106)

Nobody thinks that learning, generally speaking, is a bad thing — just the opposite is true. Yet it seems that learning, undertaken with impure intentions, can be just as bad as it can be good. In the philosophy classes I took in college, I can remember several instances where students attacked the professor with dozens of pointless questions, and then when getting answers, continued to rephrase the same question to continue the conversation. It’s certainly important to ask questions and debate in a philosophy class; that’s probably the most important thing you’ll do as a philosophy student. However, when students stray over from probing questions to a vain attempt to look sharp in front of the professor, they are doing just what the Buddha warned against. They aren’t learning for the sake of learning, they’re learning for the sake of self-aggrandizement. In behaving this way, they aren’t trying to learn as much as they can in the course of the lecture, they’re trying to show all of the other students that they’re smarter and more capable.

The ironic thing, though, is that these students may very well not get as much out of their education as they could have. So deeply wrapped up in their own desire to feel superior, they never stop to ask, ‘Have I really learned anything?’ For them, education is about gain and showmanship, not about self-improvement and happiness. Studying philosophy in the correct way can give the student so many things: an awareness of the past, a sharp, logical mind, and an impeccable ability to write persuasively. But studying philosophy incorrectly, with the intention of making oneself look smarter, actually does the opposite. The person who brings up philosophical points at inappropriate times just seems silly; they seem desperate for attention, which is one of the worst things you can do when trying to make friends or win respect. In philosophy, as in everything else, we must be moderate. We must use our minds and their contents for our own betterment, not the outward appearance of such.

The take home message: if you want to use education to better yourself, you must learn to ask the right questions with the right intention. Otherwise, you will be lost.

Reference:

Early Buddhist Discourses. Ed. John J. Holder. Indianapolis: Hackett Publishing, 2006.

Legalized Immorality (Part II)

A while back, I wrote a post about how the Nazi party manipulated the German legal structure in order to give their atrocities the appearance of legitimacy. This is a clear-cut example of a state using laws to justify immoral action; however, the concept of legalized immorality, of governments using laws to promote a certain agenda at the expense of the liberal rights of some people, is basically ubiquitous in the world of the state.

A strongly socialist conception of the ends of governance, one in which individual needs are sacrificed to the interests of a vaguely-defined other entity, seems more likely to promote immoral or unjust actions than a very liberal state, which sees its purpose as the preservation of individual liberty. In his book A History Of English Utilitarianism, Ernest Albee makes a very typical statement to this effect: “every government is, and must be, ‘paternal’ in the sense that it provides for the common good in many ways that can by no means be included under the single head of Justice, according to any legitimate interpretation of that principle” (317). This sort of sentiment, stated in this way, is deceptive. Most people, when reading this, might think of Robin Hood, who steals a little money from a rich man who has everything, to provide for a poor man who has nothing.

The ideal embodied by Robin Hood correlates pretty strongly with what people think about the nature of government: not ideal, in most cases, but practically necessary to improve the lives of others. Yet it’s clear that, if allowed free reign, this sort of approach to the nature of governance can lead to some terrible injustices — so terrible, in fact, that it’s hard to believe that any socialist could ever accept them. The socialist would use government power to promote economic equality by planning and distributing wealth according to need. But consolidating economic power in the hands of a central planning authority, as F. A. Hayek notes, is sure to lead to massive social confusion: “The welfare and the happiness of millions cannot be measured on a single scale of less and more” (101).

Indeed, no social planner can effectively take into account the desires of the individuals constituting an entire society in any way that will make those people as happy as possible. If a social planner decides to allocate goods in society in a way that is favorable to  a certain person or group of people, it must necessarily be at the expense of some other person or group of people. Thus, says Hayek: “The effect on the people’s agreeing that there must be central planning, without agreeing on the ends, will be rather as if a group of people were to commit themselves to take a journey together without agreeing where they want to go: with the result that they may all have to make a journey which most of them do not want at all” (104). Even if some people do benefit in some way from the decrees of a socialist economic planning directive, there will be a great number of others in society whose interests are hampered as a result.

I find it quite telling above that Albee, who espouses a socialist conception of the ends of government, openly admits that the purpose of that style of governance is to perpetrate injustice. Even if some people in that society benefit as a result of the socialist economic measures, it must be at the expense of the interests of others. The socialist conception of governance thus necessarily violates the rights of others, in order to help some. In short, the purpose of that government is to perpetrate immorality, in the name of expediency. Legalized immorality shows itself once again.

References:

Albee, Ernest. A History Of English Utilitarianism. New York: Collier Books, 1962. (Originally published 1902).

Hayek, F. A. The Road To Serfdom. Chicago: University Of Chicago Press, 2007. (Originally published 1944).

Some Comments on the Anti-Counterfeiting Trade Agreement

This exists.

The Anti-Counterfeiting Trade Agreement is some sort of international treaty that around two dozen countries from around the world have signed. The stated purpose of the treaty is ostensibly to protect intellectual property rights from around the world, particularly as relate to the illegal sharing of copyrighted material online. That the government wants to police digital copyrights is certainly nothing new — it’s been going on for years. However, the difference seems to be in the scope and authority with which this treaty would allow the violations to be policed and punished.

Additionally, the treaty’s legal status is such that none of the signatories (which include major nations like the United States and the entire European Union) had a say in the construction of the terms — it was done in a closed-door, international process. What’s nice about the process so far is that the treaty has yet to be ratified by any of the signatories, so for now, it is not enforced. However, if the link above is to be believed, some ISPs are getting a head start on enacting the treaty’s terms.

The rest of this article is a list of relevant passages lifted from chapter II of the text of the treaty with some relevant commentary. It’s just unclear enough to confuse the reader yet clear enough to proscribe some pretty sketchy terms. My interpretation will hopefully clarify the legalese for those of us who prefer plain English.

Without prejudice to its law governing privilege, the protection of confidentiality of information sources, or the processing of personal data, each Party shall provide that, in civil judicial proceedings concerning the enforcement of intellectual property rights, its judicial authorities have the authority, upon a justified request of the right holder, to order the infringer or, in the alternative, the alleged infringer, to provide to the right holder or to the judicial authorities, at least for the purpose of collecting evidence, relevant information as provided for in its applicable laws and regulations that the infringer or alleged infringer possesses or controls. Such information may include information regarding any person involved in any aspect of the infringement or alleged infringement and regarding the means of production or the channels of distribution of the infringing or allegedly infringing goods or services, including the identification of third persons alleged to be involved in the production and distribution of such goods or services and of their channels of distribution. (Section 2, article 11)

This portion of text is very clear: the person who is suspected of illegally downloading copyrighted material must turn over their personal information to the copyright holder — as well as the state — in the judicial process. This information includes correspondence with anyone else who might have been involved with the infringement. It’s certainly not hard to imagine a copyright holder demanding information about the infringer’s parents or significant other –wouldn’t those people logically be the most likely to know about the infringer’s misdeed?

Each Party shall provide that its judicial authorities have the authority to adopt provisional measures inaudita altera parte where appropriate, in particular where any delay is likely to cause irreparable harm to the right holder, or where there is a demonstrable risk of evidence being destroyed. In proceedings conducted inaudita altera parte, each Party shall provide its judicial authorities with the authority to act expeditiously on requests for provisional measures and to make a decision without undue delay. (Section 2, article 12, paragraph 2)

Another point of clarification: “inaudita altera parte” is a legal concept whereby judges can make legal pronouncements without the relevant people present. Essentially, this clause means that a judge have jurisdiction over evidence that may be contained on private devices. Of course, they may only hold this power when there is a “demonstrable risk of evidence being destroyed.” But a “demonstrable risk” is of course an inherently vague term, open to interpretation.

For offences specified in paragraphs 1, 2, and 4 of Article 23 (Criminal Offences), each Party shall provide penalties that include imprisonment as well as monetary fines sufficiently high to provide a deterrent to future acts of infringement, consistently with the level of penalties applied for crimes of a corresponding gravity. (Section 4, article 24)

The “offences specified in paragraphs 1, 2, and 4” are copyright infringements, defined in a standard sense. This treaty’s purpose is stated as deterrence — the signatories want fines to be big and crippling, so that people will be very afraid to download illegally. Of course, once again, no specific penalty is specified, leaving the numbers up to individual decisions on particular cases.

With respect to the offences specified in paragraphs 1, 2, 3, and 4 of Article 23 (Criminal Offences) for which a Party provides criminal procedures and penalties, that Party shall provide that its competent authorities have the authority to order the seizure of suspected counterfeit trademark goods or pirated copyright goods, any related materials and implements used in the commission of the alleged offence, documentary evidence relevant to the alleged offence, and the assets derived from, or obtained directly or indirectly through, the alleged infringing activity. (Section 4, article 25)

This one really gets to me. Legal authorities may steal anything that an individual used to commit a copyright infringement, including, I’m sure, a personal computer that nonetheless may by used for legitimate, non-criminal activities. It’s hard to imagine that this clause will not be abused in practice….

Further to paragraph 1, each Party’s enforcement procedures shall apply to infringement of copyright or related rights over digital networks, which may include the unlawful use of means of widespread distribution for infringing purposes. These procedures shall be implemented in a manner that avoids the creation of barriers to legitimate activity, including electronic commerce, and, consistent with that Party’s law, preserves fundamental principles such as freedom of expression, fair process, and privacy. (Section 5, article 27, paragraph 2)

It seems quite hypocritical for an agreement ostensibly concerned about freedom of expression, fair process, and privacy to allow the sorts of state-sanctioned invasions of privacy — and property — as described above.

A Party may provide, in accordance with its laws and regulations, its competent authorities with the authority to order an online service provider to disclose expeditiously to a right holder information sufficient to identify a subscriber whose account was allegedly used for infringement, where that right holder has filed a legally sufficient claim of trademark or copyright or related rights infringement, and where such information is being sought for the purpose of protecting or enforcing those rights. (Section 4, article 27, paragraph 4)

This is the big bomb that ACTA drops on us. As long as a rights-holder files their claim in a court, they may order, with the state’s sanction, that the ISP turn over private information about the alledged infringer to the rights-holder. This means that a music publishing company can acquire your personal information if they suspect that you have downloaded their material illegally, and they can do it with the full force of law. Furthermore, if a rights-holder can demand personal information from the ISP, the impetus is on the ISP to hold more personal information to cover their interests legally. This sort of data cataloguing creates numerous risks, including a greater measure of harm that can be caused by hackers who illegally access the private information files of the ISP.

Let me reiterate that this treaty does not have any legal force in any of its signatory countries. Yet. If the CNET article linked above is to be believed, then these policies will begin to have influence on July 1st of this year. That is ten days from the date of publication of this article. Your internet service providers, if this treaty is ratified, will be under enormous pressure from the state to do more to combat internet piracy, which means that they will be forced to compile more reliable information about the private browsing habits of individuals. I fear that this sort of legislation is a gateway into further invasion of privacy. The state wants to spy on your online activities to prevent you from committing crimes. What’s to prevent them from putting cameras in your homes to ensure that you do not consume illegal drugs?

We commonly hear the following justification: if you have nothing to hide, then why do you fear intrusion? It’s not the intrusion per se that we fear; it’s the fact that the state takes these liberties from us against our will. Where does one draw a line between privacy rights and enforcement of laws, if we don’t consider the line to be important at all? What’s to prevent the further erosion of rights to protect the comfort of others? I strongly urge people to be aware of these policies which loom heavily over our heads and pose a serious threat to our rights to privacy.

Reference:

Anti-Counterfeiting Trade Agreement