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BORIS G FREESMAN, Q.C., J.D. A Just Society
Boris is a retired trial lawyer, cybernetician and pioneer in both ADR and
Elder Law who now serves as a Deputy Judge of the Superior Court of Ontario.
He speaks from experience about law reform, the administration of justice,
complexity, conflict resolution and cybernetics as applied to the legal,
economic, political and educational systems. EXPERIENCE
EDUCATION
For full information on "A Just Society" with Boris Fressman's full perspective please visit his site at : www.aJustSociety.net
Privacy
What
is privacy? It is the legal claim by a person or organization to control
collection and access to information about him/her/them/itself – the right to
decide who, what, where, when, how and if that information is made available to
others. It has also been described as the citizen’s right to be left alone by
the state.
The
right to privacy is one of the cornerstones of democracy and for most of our
ideas about civil rights and liberties. It
manifests as the right to own property; the privilege against self
incrimination; the right to consult counsel; the right to face witnesses and to
challenge evidence at an open trial; the right not to be subjected to
unreasonable search and seizure; the presumption of innocence; proof of criminal
allegations beyond reasonable doubt. Privacy,
as a concept or idea, evolved in the Common Law of England: “for an
Englishman’s house is his castle.” The
American Declaration of Independence and Constitution enshrined it as a means of
establishing and maintaining a balance between individual rights and the state
or collective needs. It was meant to ensure that abuses such as those
perpetrated by the Court of Star Chamber 300 years ago never again happen. And
to protect and enhance our inalienable rights to pursue life, liberty,
happiness, security, equality, fraternity... each according to the rhythm of our
own heartbeats. In
the 18th century, “information” was something quite different from what it
is today. It was recorded, organized, accessed and transferred subject to the
personal frailties, limitations, biases, emotions, prejudices and, often, whims
of the person/s observing or recording it. It was “malleable,” recorded on
paper with quill pens and transmitted at the speed of horses and sails. It was
often error prone, subjective, inaccurate and unreliable. In
the 21st century, “Big Brother” is here – whether or not we like it!
The Information Age means that data about us can be robotically and
objectively gathered and compiled with a very high degree of accuracy and
reliability... in real time and almost instantly accessible! Indeed, because
data “casts shadows,” practically every detail of each person’s life could
be fairly and accurately reconstructed by a third party with access to the
relevant data. Of
course, history teaches us a horrible lesson. It is the syllogism proved time
and again in our experience: when properly organized, data becomes information;
information, properly understood, becomes knowledge; “Knowledge is power;” “Power
corrupts; absolute power corrupts absolutely.” Access
to discrete information and, in particular, exclusive access, is an extremely
valuable “commodity.” It drives most of the engines of our civilization:
government, economics, commerce, politics, law enforcement, dispute and conflict
resolution... But
we are afraid of concentration of information gathering and uncontrolled access
thereto because it makes it so much easier for others to learn details of our
lives which make it possible for them to perpetrate abuse. But
the reality is that the balance between citizen and state, in particular, has
shifted dramatically over the past few decades – particularly in relation to
the need for data and information to secure ourselves against threats which, in
the 18th century, were unimaginable. We
have a very serious problem. It is the enemy within. It is our own refusal to
honestly re-examine and reassess many of our fundamental ideas about ourselves,
our rights and our institutions in light of the fact that technology has
transformed our reality. We
are trapped by our unswerving commitment to ideas and concepts that have, in
fact, become obsolete. We
have long accepted as axiomatic the proposition that each of us is a sovereign
and independent individual. This notion is a keystone of our legal, economic and
political systems. But
the undeniable fact is that over the past 250 years we have become and are
increasingly becoming interdependent, interrelated, interconnected and
interactive. This
is a much different and extremely more complex proposition. The nature of our
relationships is totally different. Our personal realities have shifted
dramatically. Our ways of thinking and ideas have not. We have placed ourselves
in the horrible quandary of trying to manage a 21st century, complex, dynamic
reality with 18th century, simple, static tools. Change
is obviously needed. The
direction of that change must take into consideration two propositions that are
logically irresistible and factually incontrovertible. First,
that the greater the volume and the better the quality of information available
to a decision maker, the more likely the decision will be intelligent. Second,
that privacy is a barrier to clarity and transparency and, thus, an impediment
to accountability in our affairs. It
must also take into consideration another factor that is equally indisputable.
The most prominent example of the right to privacy is the privilege
against self-incrimination -- the right to remain silent, as it is often called.
But,
whom does this right protect? Not the innocent! Their best protection and
defense is clarity:- an accurate, full and transparent disclosure of all the
material facts and circumstances. In other words, all relevant information:
“the truth.” For the guilty, on the other hand, their best defense is
opacity:- the suppression and obfuscation of information. Questions of abuse
aside, only the guilty truly benefit from privacy.
Today,
we do not really need privacy. We need protection from potential abuse. Privacy,
secrecy and opacity are a charter of opportunities for abusers. Much
more so now that we understand that the threat to our freedom and security is
not from external sources that can be observed, measured and anticipated, but
from the enemy within... for terrorism is a clandestine, internal threat. Is
it possible, today, to create a just society in which all information is freely
available to whosoever genuinely needs it? I think it is. Indeed, how can there
be justice without truth?
But it is a challenge.
THE What
mess am I talking about? It’s the state of the human condition today. The
extent of human suffering. The
immensity of the catalogue of
...
to which Mother Nature seems capriciously to be adding her own fury. It
is no longer a matter of something happening to some unfortunates in some remote
or backward corner of the world, it is repeatedly touching each of us. And
as terrible as “things” are outside, there, the most brutal aspect of the
human condition has become the pain, suffering and insecurity inside, here. It
deeply pains me to think that this is the world I am leaving to my children and
posterity: my legacy to the world that has sustained me. I had hoped to leave
this world a better, not more desperate, place than the one I inherited. We
have an extremely complex problem. It has many different facets. Each facet has
many issues. And there are multiple ways of looking at each issue. How
do we get out of it? I
don’t have many specific answers. Yet. Well, perhaps one: certainly, not just
by working harder at what we are doing. When in a hole, the harder we dig the
deeper the hole gets. But
what I do have is very timely advice and wisdom from Albert Einstein, more
questions and some ideas about how we got into it which, I think, is the first
clue in finding a way to get out. First,
I want to be candid and transparent about my perspectives and personal filters:
the lenses through which I observe. I don’t think any one should have to
guess. My
thinking in these matters has been deeply influenced by a man by the name of
Stafford Beer. If Spinoza was a God intoxicated man, I am drunk on Beer.
Stafford Beer is to what I write what paint is to what an artist paints. I
rely on three essential propositions – which I am prepared to explain and
defend. First,
I see everything in terms of systems, not as “things” or “entities.”
Indeed, as systems that contain or include subsystems or microsystems within,
and are themselves contained or included within supra-systems or macrosystems
without. Like Russian metrushkas or Chinese boxes. Second,
I see everything in terms of information. The common denominator of all systems
– natural, mechanical, social and human – is that they exchange information.
Not only internally between component parts and subsystems, but also externally
with other systems and macrosystems. Third,
I consider that the effectiveness and viability of any system depends upon the
ease, facility and fluidity with which it (i) records and (ii) organizes the
data and information it receives, and (iii) accesses and (iv) transmits the data
and information it sends out. That is, upon the richness of information exchange
and flow. Information
truly means in formation. So,
through these filters and in these contexts I want to examine – perhaps,
reconsider – the three most important institutions human beings have created
to address the human condition: our legal, economic and political systems. “LEPS,”
to coin an acronym. LEPS
play the most critical role in determining the direction and state of human
affairs. The
question that I have is this: Are LEPS a part of the solution to human
suffering, or are they a part of the problem?
The way I see it, neither. They
are the problem. We
find ourselves in this mess because our LEPS have not yet discovered a way to
effectively cope with and manage the monumental increase in complexity in our
affairs over the past 100 years. The
design and architecture we still use was invented in the 1700's – in fact
during a remarkable seven year period between 1769 and 1776 – and our LEPS
were neither designed nor intended to cope with a degree of complexity and a
volume and variety of information that was then unimaginable. Further,
they are premised on what was a noble 18th century dream that turns out to be a
21st century fallacy:- the notion that people are independent of and from each
other. If ever we were, we no longer are. We are interdependent. Interactive,
interconnected and interrelated, too. And
the reason we have not yet found an effective way, is that we still cling to
concepts and ideas about LEPS that were conceived to deal with a much simpler,
much less complex reality. Paraphrasing
Albert Einstein’s observation: “[Technology] has changed everything save our
modes of thinking, and thus we drift to unparalleled catastrophes.” Let
me say that metaphorically: if our LEPS are ships -- ships of state -- then we
still cling to the same techniques and strategies, the same basic tools... the
same kinds of buckets that the renowned navigator, Captain James Cook, used to
bail out the bilges of his ships. Except
that, today, our ships are Nimitz Class aircraft carriers. Who
would hire Captain Cook, today, to navigate the USS Ronald Reagan trusting and
relying upon his 18th century navigation skills and experience? Again,
from Albert Einstein: “The world that we have made as a
result of the
level of thinking we have done thus far, creates problems we cannot solve
at the same level at which we created them.” We
cling to these concepts and ideas because that is where all of us have invested
a huge part of ourselves, our energies and our societies. LEPS are the anchors
and points of reference or orientation we rely upon to face the uncertainties
and insecurities of life. What
our LEPS have in common is this:
the dynamics of the processes, exchanges and interaction between actors
(those interacting with or within these systems) is adversarial and competitive
– often, aggressive and antagonistic,
the actors have the power to censor and withhold – indeed, manipulate
– data and information about themselves: they have “rights” to privacy. Hierarchical
structures, competitive dynamics and the ability to censor and manipulate
information are formidable hindrances that impede the ability and facility of
LEPS to record, organize, access and transfer [ROAT, to coin another acronym]
data and information. They resist the Law of Requisite Variety. That
means they are not suited to the task of managing complexity. So
we are caught in a veritable “Catch 22.” Our LEPS are both the cause of, and
our inflexible solutions for this mess. And the only way out, m’thinks, is to
change the way we think about LEPS. This
will, I sense, require a revolution because, so far, evolution has only
increased our propensity to create and intensify messes. But unlike most
revolutions in mankind’s history, this one must take place not outside, there
but in our hearts and minds, inside, here. We
must change the way we think about LEPS in order to give birth to something new. More
Einstein: “A new type of thinking is essential if mankind is to survive and
move towards higher levels." Where,
then, can we find a model for intelligent, effective systems that are adept to
cope with the overwhelming complexity in our lives today? Mother
Nature: The human body. The most complex and marvelous system that we know and
an exquisite example of a system competent to effectively manage complexity. And so it is that about 300 years after Alexander Pope first wrote it, it is ever more true: “The proper study of mankind is man.”
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