cross-posted from: https://links.hackliberty.org/post/213918
I’m increasingly encountering situations where people are forced to go through various kinds of technical hoops in order to exercise their legal rights.
Five examples:
① You have a right to reserve streetside public parking in front of your house (e.g. for a week-long construction project). Historically you can go to city hall or the like, give your schedule, and pay a fee. But then they decided to put the reservation system exclusively online. Cash payers are excluded. Offline people are excluded. People who are online but do not want to share their email address with an office that uses Microsoft for their email are also excluded.
② You have a right to unemployment benefits. But the unemployment office goes online and forces you to solve a Google reCAPTCHA. Google’s reCAPTCHA often refuses to serve the puzzles to Tor users. People who are on clearnet may be unable to solve the CAPTCHA. Some people /can/ solve it but object to feeding a system that helps Google profit because they boycott Google.
③ You have a right to vote. But the voter registration process exposes your sensitive information to the tech giant Cloudflare and Amazon. Even if you register on paper, the data entry workers will expose your data to Cloudflare and Amazon anyway.
④ You have a right to energy access. But the energy company refuses cash payments so you are forced to open a bank account. All banks force you into a situation that goes against your beliefs. E.g. forcing you to obtain from Google a closed-source app to run on a smartphone (which you may not even have), or the bank’s website is Cloudflared and you will not share your sensitive financial info with CF. And the banks either have no analog/offline means of service, or the offline services are costly.
⑤ A public school excludes students who are unwilling to use Facebook, Google, Cloudflare, and Microsoft products & services. Anyone can attend but those who refuse to feed the corporate surveillance capitalists are put at a great disadvantage perhaps to the extent that they cannot pass their classes.
Not all those examples are real. E.g. in the real life scenario of case ② I think there is an offline option (but not sure during a pandemic). So my question is hypothetical— assume there is no pathway to service except for satisfying the barriers to entry.
The Universal Declaration of Human Rights, article 21:
“2. Everyone has the right of equal access to public service in his country.”
Some nuances can be extracted from the examples:
A) You are incapable of exercising your right yourself. E.g. blind and the CAPTCHA requires vision, or you are not tech literate enough to follow the tech process. But you can hire someone to do the work for you.
B) You are capable of exercising your rights but unwilling to accept the conditions. Hiring someone may or may not be possible depending on whether your personal conditions can be accommodated.
So the big question is, for groups A and B: are rights being violated?
Group B is the more interesting one. A common attitude is: those people have “preferences” and their rights are not violated when their preference is not respected. I find that quite harsh. When a right becomes conditional by the institutions who are supposed to support the right, IMO the conditions (which are not written in law) are inherently excluding people. If a right is going to be made conditional, isn’t there some kind of legal principle that the conditions be codified into law and not some arbitrary condition that a systems administrator decided was a good idea?
#rightToBeOffline #rightToBeAnalog
This in a sense pertains to the privacy vs. security debate. When both are principles that are consecrated (to different extents) by the law, the legislator and judge have to put some effort into conciliating the two. This is done respectively through exceptions and criteria of appreciation.
Regarding your question: from a positivist standpoint, rights are constructions by the State granted to particulars. They can be taken and given in a whim by virtue of a legal text or jurisprudence. If one finds that a certain (not prescribed) conditioning is unfairly hindering their enjoyment of a right, then the matter should be settled in court.
In administrative law, the principle of legality provides that public administration must only act according to the law. In other words, the submission of the administration to the law serves as a garantee to citizens from arbitrary, administrative action. Whenever the administrator violates a general principle of law (bonus points if the constitution consecrates it), legal action via the court is almost guaranteed to overturn the act.
In the (hypothetical) case of limiting certain public services to online platforms, one can make the case for a violation to the right to access public services without undue empediment. However, if the public interest calls for limitations, then said right will accordingly be conditioned.
I appreciate the detailed feedback, which I think probably answers my question as well as possible from a utilitarian standpoint to a usable extent.
I primarily needed to verify that when speaking at rallies I would not be falsely informing people or pushing an indefensible position. If a public service is made exclusive even per a loose interpretation whereby objectionable conditions stand as a barrier, it seems fair enough to at least claim that rights are being violated all the way to the courthouse, and inside the courthouse, until a judge determines otherwise. You gave me the confidence I was after.