Optional rights

2015-01-03

Our societies are built on rights which correspond to social norms; fundamental rights correspond to fundamental norms and local rights correspond to local norms. These rights can either be written down like laws, or they can merely be the practical manifestation of the informal norm. This collection of rights is a product of many, many years of progress, but this unfortunately doesn’t mean we can take them for granted. Every single day our rights are subject to discussion and shifting norms.

In recent history it seems that our established rights are no longer taken for granted but are repeatedly being offered as an option. The choice is offered between either keeping your rights or either having some increased convenience or financial benefit. Whilst this does not directly attack our rights, it still does so by way of shifting our norms. If some majority of people aren’t aware of this ‘trap’ and consequently give up their rights, this decreased level of rights becomes the new norm. In these cases the option of choice is hurtful to society, unlike the choice in the marketplace. This choice analogy is however used as an argument to justify the optional rights.

Recently in the Netherlands the right to choose your doctor was subject to debate in parliament, as the liberal party wanted to offer it as a choice, rather than as a right. Giving up this right would enable a financial benefit to the health insurances resulting from their increased negotiation position. In principle consumers should be able to still have this right available to them, but this market principle only holds if some insurances are offering this freedom of choice and the consumers are in fact aware of this consideration and care enough to defend this right. Erecting a new insurance company that adheres to these norms would be the way of the market, but unfortunately this is easier said than done. This market principle thereby undermines the stack of rights we have built over the years as a society via our democratic process.

This grim future of unavailable rights is already a fact in the Dutch educational system, as explained at this Dutch page. Whilst the Dutch parliament has agreed on the right for people to strictly use open standards and free software during education, there is no single Dutch school offering such an educational program. The reason for this unavailability is that in practice schools can choose their IT-systems and the student in market for education respecting open standards and free software is apparently too small or to distributed. So despite our democratic parliament agreeing on this right, in practice this right is subject to the market offering and as a consequence this right isn’t defended anywhere.

Another example is the infamous Facebook, which uses their social lock-in principle to trap users into accepting new terms which violate social norms on privacy, intellectual property and copyright. So rather than offering any benefit in return, it leaves not using the service as the only alternative. In order to defend our established rights, we must stand against this violation both as users and as a society. In this regard we can be glad the Dutch Data Protection Authority is at least investigating Facebook’s new terms.

Considering established levels of privacy, security, freedom or any other kind or right as a marketable feature is hurtful to society, because it erodes our values, our norms and therefore our rights.

This insight was triggered partially by the presentation on Privacy in Context by Helen Nissenbaum and the presentation by Richard Stallman at 31c3.