Self-commitment vs. Legal claim

When it comes to money, morality is not sufficient protection

The explosion in the number of users of the Internet goes hand in hand with an ever-increasing commercialization of the services on offer. This may be regrettable in principle, but it will be difficult to stop this development. But in order for the Internet to become a functioning marketplace, some basic conditions must first be established. For economic transactions to take place at all, a minimum of mutual trust must exist between the transaction partners.

An important aspect here is the extent to which business processes have side effects for customers that they do not want. The use of secretly transmitted GUIDs (assignment of ID numbers by cursor images), with the help of which user profiles can be created by companies, has discredited the previous regulations, which – especially in the USA – are essentially based on self-commitments and certifications by supposedly independent testing authorities.

The bad boys and their pranks

Recently, three companies in particular have been targeted by the Net public: Intel, Microsoft and RealNetworks. Intel has built a unique identifier into the Pentium III processor series. With this, the computer and thus, with appropriate precautions, also the owner or user can be identified. Clearly identify the user of the computer. Microsoft has designed the programs of its Office packages in such a way that unique identifiers are also stored in the documents created with these programs. In this way it is at least conceivable to identify the author of a corresponding document (Microsoft and Privacy).

RealNetworks on the other hand sent with its RealPlayer a unique identifier with the registration of the free PlugIn and with each request of a file for the player. Here, too, it is possible to identify users if the registration data is known, and it is also conceivable to create user profiles with which, for example, users can be identified. the evaluation of preferences for musical pieces in order to target advertising (the repentant sinners want to become saints in privacy).

No malicious intentions?

It is not surprising that the caught sinners, if they are or were willing to confirm the facts at all, either affirm that the sending or storing of a GUID was done only unintentionally or exclusively for the benefit of the customers and users of the respective product.

In principle, it is true that GUIDs can be used for purposes that benefit the users of the product. For example, processor IDs could be used to generate digital signatures or to simplify logging in to web portals with personal settings; other useful applications are certainly conceivable. But this is only one side of the coin, because just as it is possible to use a baseball hitter for the game or for rather brutal purposes, it is of course always possible to use a GUID for purposes that are definitely not in the interest of the users of a product. The use of unique identifiers is not a new approach, and the questions and problems associated with it are not exactly brand new either. Every Ethernet network card has a globally unique MAC address; here, too, it is at least conceivable that this identifier could be used to collect information about the computer user and his or her activities on the Internet without his or her knowledge.

However, it can be amed that the discovery of corresponding identifiers in current products led to extensive concerns and protests because only the commercialization of the Internet has awakened the necessary awareness of the problem. When the MAC address of Ethernet cards was introduced, the use of networks was essentially limited to rough institutions, companies and universities. The users in the institutions of the first and second type have done their work there and have hardly pursued any personal interests, respectively. track. They could hardly leave any personal information that could be of commercial interest (except, perhaps, for the ability to generate accurate billing information about transactions made and thus user performance profiles). Users in universities lived and worked in a climate of general trust; the idea that one could come under the gaze of a Big Brother, albeit a commercial one, would have been rather unusual then and there. Data protection problems of that time consisted mainly in the collection frenzy of the authorities, not in the use of corresponding data for commercial purposes.

Problem Solving

In principle, there are probably three possible solutions to protect users from the unintended effects of such invisible information-gathering mechanisms:

  1. Do nothing at all in the sense of not using the products in question
  2. Self-commitment of the companies not to misuse the collected information or not to collect such information in the first place, i.e. not to use the corresponding mechanisms either
  3. Legal regulations

The first alternative is not a viable option in the vast majority of cases. In fact, it is almost impossible for many computer users to avoid using Microsoft products. On the one hand, bundling hardware with software is a very convenient way for customers to legally obtain software. Moreover, switching to the products of other manufacturers is not a way out (not even a different hardware platform), as long as it is not clear whether there are not similar pitfalls to be feared here. In addition, the willingness to spend several hundred DM for software is low, if appropriate programs are delivered with the computer.

The switch to LINUX is currently not an alternative for the average user who only occasionally creates and uses a text, a spreadsheet or a small database: the knowledge required for this is simply still too coarse, the maintenance of a LINUX installation too time-consuming, and there are no or hardly any games for this. So why install a new operating system when a Microsoft product is already available??

Self-commitment by companies as a second alternative to behaving according to self-imposed rules is particularly favored by the relevant companies in the USA, but now also in the EU and Germany. Either companies impose a code of conduct on themselves in the process, which they then are their customers they will abide by. Or an independent institution could be established to certify and monitor compliance with predefined standards. In principle, it is important that the regulations for the protection of the "privacy" are a matter for companies and do not originate from the state.

This already mentions the third alternative. Government bodies, i.e. national governments, or supranational institutions such as the EU, determine through legislation which standards apply to the handling of personal data, how these standards are to be enforced, and which procedures are to be followed in the event of violations of the standards and regulations laid down.

Political philosophy as an argumentation aid

The first alternative, as noted above, is not a viable course of action; some of the reasons have already been mentioned. Seriously, only the second and third alternatives of self-regulation or state regulation through legislation can be considered. In this context, the companies’ preference for self-commitment is not only economic, but also ideological, not to say philosophical.

The economic argumentation is relatively simple. State regulations, according to the companies concerned, would hinder Internet trade, thus reducing achievable sales and profits and ultimately endangering jobs and the economy. even destroy or at least prevent the creation of new jobs. In times of quite high unemployment, at least in Europe and in the Federal Republic of Germany, these rather simple arguments are nevertheless well received.

The ideological or. philosophical justification lies in the view that state regulation is unjustified interference in the lives and actions of citizens in democratically constituted societies. Thereby one can refer to illustrious names in political philosophy like John C. Harsanyi, James W. Buchanan, John Rawls, or Robert Nozick invoke. The theses of these authors are understood in such a way that the state and its institutions have the task of creating framework conditions so that the citizens of a democratic state can live in rough freedom.

It must be emphasized, however, that the various representatives of liberal positions have very different views on how this task should be solved. For example, John Rawls in his epoch-making work "A Theory of Justice" (German: "A Theory of Justice") do not argue that the state should be a minimal or night-watchman state. For him, the institutions of the state must be designed in such a way that they permit unequal distributions of power and property only if these unequal distributions serve the benefit of all citizens of the state. If this is not the case, regulations must be put into effect that change the given state of affairs in the direction of an equal distribution, or rather. obligate the owners of power and property to use their goods for the benefit of the general public and in particular for the benefit of the worst off of a society (in this sense one can for example. also Basic Law, Article 14, Paragraph 2: "Property obliges. its use shall at the same time serve the common good" understand).

Thus, according to this liberal conception, the state and its institutions are perfectly entitled to intervene in the liberties of citizens to the extent that gross inequalities in the distribution of goods and thus injustices can be mitigated or remedied. Rawls sees the justification for this right of intervention in the fact that all citizens, if they do not know their own place in society and do not know whether they are poor or rich, powerful or powerless, would agree to these interventions, since only in this way is there a chance that they can successfully realize their life plans.

In contrast to this is the position known as "libertar" – in contrast to "liberal" – This is the position of Robert Nozick in particular. It ames that the state and its institutions should, as far as possible, stay out of the lives and actions of citizens. For him, the tasks of the state are limited to defending the peace to the outside and protecting the property, rights and freedoms of the people. It is not one of its tasks to eliminate inequalities in the distribution of goods. If the actions of the people do not collide with the tasks of the state, the state should restrain itself.

From this position of political philosophy one can derive a legitimation for the view that the problems of Internet commerce, resp. of the Internet as a whole cannot be solved by new laws, but only by agreements between the users of the Internet (although I do not necessarily ame that the adepts of neoliberalism were aware of this legitimization). In fact, John Perry Barlow’s declaration of the independence of the Internet is similar: governments should stay out of the Internet as much as possible.

If one interprets the libertarian position as a radical democratic one, it certainly has appeal. However, it then also takes on a utopian character in the negative sense. Nozick ames that people in a libertarian society will use their reason and take care to establish stable conditions. However, it remains to be answered to what extent a society is rational or at least stable, if gigantic disparities exist within it with regard to the ownership of goods.

If we look at existing societies with corresponding levels of wealth and power, we can see, at least empirically, that a number of these polities exhibit instability. Crucially, however, such unequal distributions can destroy the foundations of a democratic polity, as the conditions for political participation and decision-making are no longer available to many people if they lack certain basic goods. Basic goods are not only of a material nature, but also, for example, of a social nature. also the free access to education and information.

Commitment vs. Legal claim

Even if the Internet shows exponential growth rates in terms of users, it is still far from being a mass medium like television. Nevertheless, its influence on the lives of many people, especially in the industrialized countries of the northern hemisphere, cannot be denied. It is not even necessary to refer to excesses such as Internet addiction. The fact that governments are increasingly taking a close look at the Internet is sufficient proof that the impact of this means of communication goes far beyond technical aspects and affects the social interaction of many people.

The question must now be asked whether the regulation of the social intercourse of people should be exclusively their private affair or whether there are sub-areas which should be determined by state intervention. Liberal positions opt for the latter, libertarian for the former. But so far we have been talking exclusively about people dealing with people; the discussion about Internet commerce, however, is primarily about people dealing with cooperative actors such as companies. Here it is to be always already amed that an unequal distribution of basic goods is present. Visiting a website allows the provider to collect information about the user without the user’s direct knowledge. This situation is aggravated by the possibilities of deliberately concealed information collection through the techniques already mentioned above. In other words, it is not the same people interacting with each other, but rather an asymmetry in the possibilities for action.

In the above examples, especially in the case of Microsoft, it is easy to see that the rights and freedoms of users can be increasingly restricted by such asymmetries. For example, proprietary file formats and incompatible programs create dependencies that limit the freedom to make future decisions. But this also undermines the basis of a liberal society in the long run. The complete abstention of state institutions in matters of regulating trade and social interaction of people with people and of people with cooperative actors such as companies is thus to be evaluated far more negatively than the moderate restriction of liberties in order to preserve these very liberties in the long term.

From this, one should conclude on the politically responsible side that it is certainly in the spirit of liberal social interaction to mitigate unequal distributions of basic goods and thus also of market power by means of legal regulations. As in many other areas of our society, it is important to regain the primacy of politics over the market power of companies when it comes to dealing with the Internet, precisely in order to protect free trade.

In concrete terms, this means that in all areas of conflict where companies argue for voluntary commitments, the creation of legal claims will probably be the far better alternative, not always, but in many cases. It cannot be the task of state institutions merely to create infrastructures for the use of the Internet and otherwise leave the shaping of the modi operandi in the network to companies, as the D21 initiative (Die Wirtschaft wird es machen), for example, would like.

There must be independent bodies before which users of the Internet – and these are not only individuals, but also companies of all sizes – can sue for their rights if other ways do not lead to agreement between the opposing parties. In this context, privately organized entities are a priori suspected of not being able to provide this independence, since they are ultimately dependent on generating profits. It seems intuitively unbelievable that a profit-oriented company would put its customers at a disadvantage in the event of a conflict.

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