“The personal-data privacy war is long over, and you lost.”
—Ian Bogost (1)
“As a general rule, a police officer can’t arrest you because you wore a hat supporting a particular political candidate. But your boss could fire you for the very same reason.”
—Tom Spiggle (2)
As citizens of a republic, we have to be on guard against encroachments on our liberty. What are the sources of those potential threats? When we think about the institutions that affect our lives, only two stand out as significant threats to our liberty. That is, only two have a track record of undermining freedom and the power to enforce tyrannical policies: governments and corporations.
The Threat from Government
Government has a long track record of violating liberty, and we can be very confident that future American governments will act to limit civil liberties. Governments will limit freedom of speech and the press; they will aggressively incarcerate people; they will inflict cruel and unusual punishments; they will seize property without due process or fair compensation. Government has done these things and, in all likelihood, will do these things in the future. We can also safely say that governments are more likely to do these things in times of war or other types of civil unrest or threat.
This textbook has focused on the national government. While it is clear that the federal government has historically committed some very serious civil-liberties violations, we should also understand that our state and local governments pose the more likely threat to our individual liberties. State and local governments largely enforce criminal law, regulate things like marches and demonstrations, make decisions regarding property use and eminent domain, control schools, and enforce morals legislation. It is important to know that while government at all levels can do tremendous damage to our civil liberties, we have important recourses available to us. Obviously, we can turn to the courts to right specific wrongs. We can elect new leaders and insist that they change laws that we find oppressive. In a democratic system—even an attenuated one—the government is our servant, so we can determine the level of freedom we want individuals to have. Do we want parents to be able to deny their children life-saving modern medicine because they have objections to it? Do we want people to be able to flout public health guidelines, even though doing so endangers everyone else and makes the need for those guidelines last longer? To what extent should government decide who can marry? Those are just a couple of the many questions we need to answer as we collectively determine our civil liberties and civil rights.
The Threat from Corporations
When we talk about civil liberties, we typically talk about government threat. However, if we think about our individual liberty, it’s easy to see the enormous threat posed by corporate power. Corporations, particularly those that are large and cross state and country boundaries, are able to dictate much of our lives on a take-it-or-leave-it basis. You want the factory to stay in the United States? You’d better be willing to take a pay or benefits cut. If the company office moves from a high-tax state to a low-tax state, you’ll have to uproot your family and move if you want to stay employed. We take this kind of corporate power for granted in the United States because workers are often in a poor bargaining position. Fifty years ago, one- third of workers belonged to a union; now only 7 percent of private-sector workers belong to a union. (3) The United States also doesn’t structurally empower workers like some other countries do. Take Germany’s Mitbestimmungsrecht—or codetermination—requirement, which dates back to the 1920s and says that “depending on the size of a German limited company, a third or even half of the members of its supervisory board are voted in by its employees.” (4) This kind of power for workers has helped support German wages, working conditions, and the vitality of Germany’s manufacturing sector.
Large American corporations are in a political situation where they can limit their workers or customers liberties, and the federal government has often encouraged this development. Consider these examples:
Privacy—Privacy is not a liberty enumerated in the Constitution, but the Supreme Court has relied on privacy arguments to, among other things, protect intimate family planning decisions. (5) But the very notion of privacy undermines the insatiable corporate need for our private information, and our political leaders have allowed this to happen. Shoshanna Zuboff describes our predicament as surveillance capitalism—“a new economic order that claims human experience as free raw material for hidden commercial practices of extraction, prediction, and sales.” (6) Reflect on the fact that your labor is worth something to corporations—they must pay for it if they want to produce value—but almost all of the information about you is freely available to corporations, who buy and sell it between themselves, aggregate it, and compile it to expand their profits. It’s odd that the National Rifle Association rails against gun licensing because they don’t want government to have a list of gun owners, but fails, apparently, to consider that corporate America knows exactly who owns which guns. Under surveillance capitalism, we traded privacy for convenience and connection. There have been some attempts to claw back some control over our information, most notably in Europe. The European Union implemented a uniform General Data Protection Regulation in 2018 to give Europeans better privacy protections, but nothing similar has passed in the United States.
Free speech—We’ve talked about the boundaries of free speech protections in the First Amendment. We cherish our ability to speak freely about the issues of the day. We often fail to realize that those protections stop at the office or factory door. As attorney Tom Spiggle writes, “Despite what many employees think, your rights to freedom of speech are fairly limited at work, and it’s often perfectly legal for an employer to take action against a worker for something they said or wrote.” (7) This is especially true if you work for a private-sector employer. Employees can talk about harassment or fraud or other illegal activities that they see in the workplace, and they can talk about wages and working conditions, but employers can prevent them from talking about politics. As employment lawyer Daniel Schwartz puts it, “Companies have a right to manage their workplaces as they want. They can prefer one point of view over another if they want.” (8)
Neo-feudalism—Almost all people below retirement age are dependent on work wages. Most of them are only one or two paychecks away from financial ruin. (9) Most working-age people are dependent on their job—or their spouse or parent’s job—for health insurance. America’s economy is characterized by regional booms and busts, and many locations around the country have become, in journalist Chris Hedges’ memorable phrase, sacrifice zones for America’s brand of exploitative capitalism—places where the project of endless exploitation of natural resources and human labor manifests itself in the form of agricultural fields where laborers endure near slave-like conditions to produce cheap food for American tables, fulfillment centers crammed with low-wage workers and robots process cheap goods for American front porches, and abandoned industrial centers where jobs disappeared over the horizon to places with lower wages and fewer regulations. (10)
When we bring all these ideas together, it’s difficult not to come to the same conclusion as a growing number of scholars, that America is increasingly marked by neo-feudalism. Neo-feudalism refers to the idea that our society resembles the feudalism that existed in the Medieval period in which most ordinary people had very limited freedom and in which economic, political, and legal structures dictated the aristocracy’s privileged position. However, under neo-feudalism, the privileged position in our society is occupied by the wealthy corporate elite. The Supreme Court’s jurisprudence, argues law professor Daniel Greenwood, “atavistically recapitulates feudal doctrines limiting the sovereign’s authority over the medieval corporations of Aristocracy, Church, guilds, universities, and cities, as if business corporations were fundamental units of our polity. . .” (11) Ordinary people in America don’t like to think of themselves as serfs, but consider how controlled people are by corporations and financial institutions. Debt—student debt, home mortgages, car loans, credit card balances, and medical bills—combined with the wage-labor imperative , the reality of sacrifice zones, and the desperation to avoid having one’s family fall into the lower classes keeps us in line. We are too busy and too dependent to engage in something like a general strike. We are too afraid to step too far out of line. We are propagandized by corporate media to think that our state of affairs is normal and unchangeable. We are too busy to understand what is really happening to us. The status quo in neo-feudal America is “marked by an economic crisis with no end in sight, by the slow but steady growth of a police state aimed at the lowest rungs of society, and a political circus which keeps us enraptured long enough that we don’t question what’s really going on.” (12) We can be protected all we want from the predations of government against our civil liberties, but those protections are ultimately meaningless if we are modern-day serfs who owe all to our corporate lords.
- Ian Bogost, “Welcome to the Age of Privacy Nihilism,” The Atlantic. August 23, 2018.
- Tom Spiggle, “Your Free Speech Rights (Mostly) Don’t Apply at Work,” Forbes. September 28, 2018.
- Quoctrung Bui, “50 Years of Shrinking Union Membership in One Map,” Planet Money on NPR. February 23, 2015.
- Horst Eidenmüller, “Corporate Co-Determination German-Style as a Model for the UK?” Oxford University School of Law. July 18, 2016.
- Griswold v. Connecticut(1965)
- Shoshana Zuboff, The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. Kindle Edition. Public Affairs, 2019. Page 2 of 664.
- Tom Spiggle, “Your Free Speech Rights (Mostly) Don’t Apply at Work,” Forbes. September 28, 2018.
- Chris Isidore, “Free Speech on the Job, and What That Means,” CNN Business. August 8, 2017.
- Quentin Fottrell, “Millions of Americans are One Paycheck Away From the Street,” Marketwatch. January 20, 2018.
- Chris Hedges, “United States Riddled with Impoverished ‘Sacrifice Zones,’” CCPA Monitor. July/August, 2013.
- Daniel J. H. Greenwood, “Neofeudalism: The Surprising Foundations of Corporate Constitutional Rights,” University of Illinois Law Review. 2017. Page 166.
- John W. Whitehead, “The Age of Neo-Feudalism: A Government of the Rich, by the Rich and for the Corporations,” Huffington Post. March 30, 2013.