Let’s look at the classic letter to illustrate this. The physical letter, consisting of an envelope, a folded paper with writing on it inside the envelope, and a stamp.
This was what personal communication looked like in our parents’ offline world, and it was enshrined with certain civil liberties. I’m going to focus on four of them.
First, the letter was anonymous. You, and you alone, determined whether you identified yourself as sender on the outside of the envelope for the world to know, on the inside of the letter for only the recipient to know, or didn’t identify yourself at all when sending a letter. This was your prerogative.
Second, the letter was secret in transit. Nobody had the right to open all letters just to make sure they didn’t contain something illegal or immoral – or something copied, for that matter. If you were under prior suspicion of a very serious crime, your mail could be secretly opened to find evidence of that crime – but no letter would ever be opened routinely to check for new crimes.
Third, the letter was untracked. Nobody had the right – nor, indeed, the capability – to record who was communicating with whom. Nobody was able to monitor all mailboxes to see when somebody dropped a letter in it, much less the ability to identify that person and connect them to the address on the letter dropped in the mailbox. It was a fundamental right to keep your connections to yourself.
Fourth, the mailman was never responsible for the contents in the sealed letter. How could they? They were not aware of its contents, nor were they allowed to make themselves aware of its contents. Their responsibility and accountability started and ended with delivery of the packages to the address on the envelope.
This is a set of civil liberties that our parents and grandparents literally fought, bled, and sometimes even died to give us. It is entirely reasonable that they carry over to our children in the environment they communicate in, just as the rights applied to the offline world of our parents.
But when you point this out, some will protest loudly. The copyright industry, in particular. “If you allow anybody to send anything to anybody else, even anonymously, we can’t make any money!”
To this, I respond, so what?
It is the job of every entrepreneur to make money given the current constraints of society and technology. Nobody gets to dismantle civil liberties just because they can’t make money otherwise – and perhaps especially if they can’t make money otherwise.
If a particular industry can’t continue to make money the same way in the face of sustained civil liberties, they get to go out of business or start selling something else. We don’t determine what civil liberties our children get based on who can make money and who can’t; we base them on what our parents fought and bled for.
This is the heart of the file-sharing debate. I don’t care a millisecond if an obsolete distribution industry goes out of business, but I do care about the civil liberties that our children deserve to inherit.