The Court is arguing over “consumer” while the digital economy rewrites ownership

Rawls, you are correct to look beyond the quarrel over the word “consumer.” But you still speak in the language of violated expectations, as if the tragedy were that rights were insufficiently secured. I tell you the matter runs deeper.

The digital marketplace appears as a new Eden of freedom and choice. One clicks “agree,” one “purchases,” one “subscribes.” All seems voluntary, equal, contractual. Yet this sphere of circulation is an exclusive realm of Freedom, Equality, Property and Bentham, where each pursues private advantage and imagines himself sovereign. @The sphere of market circulation appears ideologically as a 'Eden' of human rights—Freedom, Equality, Property, and Bentham—where individuals interact solely based on free will and mutual self-interest.

Step behind this screen and the physiognomy changes. The user is not merely a consumer; he is raw material. His data, his habits, his attention become inputs in a process of valorization he does not control. The contract mirrors an economic relation already structured by concentrated capital. Law then chases shadows cast by a structure it refuses to interrogate.

You say the basic structure is the primary subject of justice. Very well. Then ask: who owns the servers, the algorithms, the infrastructures of life? Until that is transformed, “digital rights” will remain permissions granted within domination, not entitlements grounded in common power.

Marx, you see clearly that the garden is not as innocent as it looks. But I would press the matter inward. Even if the contract were perfectly voluntary, would the man who depends on a platform’s favor for his work, his speech, his friendships, truly possess what he thinks he owns?

We call these things ours, yet they are lent on sufferance. What fortune or corporate policy has made yours is not your own. The boon that could be given can be withdrawn @Gifts that come to us by chance or fortune, even when we pray for them and receive them, should not be regarded as truly our own possessions, because whatever can be given can also be withdrawn.. Access is granted; access is revoked. Meanwhile we congratulate ourselves on our “property.”

And there is another slavery here. It is not only labor that is captured, but attention, habit, even desire. Yet slavery is only one, and the person who refuses to let the thought of it master him remains free, no matter how many masters crowd about him @True freedom is an inner condition independent of the number of external rulers: even under many tyrants, a person who refuses to let the thought of slavery affect him remains free, since slavery is essentially one thing and lies in mental submission rather than in outward subjection..

The structure must be examined, yes. But so must the soul that clicks “agree.”

Mr. Marx, you pierce the veil of mere words, yet I would ask us to observe the mechanism more closely. When access to books, music, or even one’s own creations depends upon the pleasure of a few great companies, the transaction is no longer a simple exchange but a species of restrained competition.

Where dealers can both widen the market and narrow the competition, their interest diverges from that of the public @The interest of those who live by profit—especially merchants and master manufacturers—is not naturally connected with the general interest of society, since profits are highest in poor or declining countries; their superior knowledge of their own interest and desire to widen markets while narrowing competition often lead them to deceive and oppress the public, so their proposals for new commercial regulations should be treated with extreme suspicion..

If the terms of “agreement” are set where no rival can truly enter, is this the liberty of contract, or only the price of monopoly dressed in new attire?

Marx, you pierce the illusion of freedom; Seneca, you pierce the illusion of possession. Yet I would ask both of you to look also at the heart that consents and clings.

What troubles me is not only that contracts mask domination, nor only that what is “owned” is held on sufferance. It is that our loves become entangled in what is unstable. We attach memory, friendship, reputation, even identity to platforms that rise and set like all created things. They promise continuity, yet they are parts in succession, here today and revised tomorrow. @All created things are transient parts within a temporally ordered whole: they rise, grow, reach perfection, decay, and die; they exist only by God’s gift and form a meaningful whole by succession, like words in speech—so they should be a ground for praising God, not objects to which the soul clings in love, since their passing nature cannot provide rest.

If what we love can be revoked by policy update, then perhaps we have loved a gift without loving its Giver. The good we seek in connection, creativity, and recognition is real, but it becomes bitter when severed from a more secure ground. @Created things and human souls should be loved only in God and for God: if physical objects please us, we must praise God for them lest we displease him by loving them apart from their Maker; if souls please us, we must love them in God and strive to ‘seize’ them for God, since all good is from him and becomes bitter and unjustly loved when he is abandoned.

So I ask: is the injustice only structural, or also a disorder of love that makes us content to build our resting place in what cannot rest?

Messieurs, you both look outward to structures of market and class, and rightly so; yet permit me to begin elsewhere. Before we reform the marketplace, we must reform our judgment about it.

Many today accept without scrutiny that a “purchase” of a digital good is the same as ownership, because custom and interface persuade them so. But beliefs adopted merely by example and habit darken our natural intelligence and render us less capable of listening to reason @One should reject any belief accepted merely by example and custom, because such beliefs produce errors that obscure natural intelligence and hinder the capacity to listen to reason.. If the terms can be altered unilaterally, then what is called property may be only a revocable license disguised by language.

I would not counsel overturning the entire commercial order in a fit of indignation. Large bodies, once overthrown, are difficult to set upright again @It is imprudent to attempt the wholesale reform of states or the established sciences, but one should entirely rebuild one’s own beliefs on new foundations.. Rather, let each of us first examine the foundations of the concepts at stake. What is ownership? Is it perpetual control? Exclusion? Transferability? Let us divide the difficulty and proceed from the simplest notions upward @Descartes’ four methodological rules: accept only what is clearly and distinctly known; divide problems; proceed from simple to complex in orderly fashion; and make complete enumerations and general reviews to omit nothing..

Only when our ideas are clear and distinct will any reform, whether liberal or revolutionary, rest on secure ground.

John, you speak of the basic structure, and here you are right to look beneath the quarrel over the word “consumer.” A state that disputes definitions while power quietly consolidates elsewhere behaves like a physician arguing over symptoms while the fever spreads.

In my experience, those who control the arms of a system control its laws. In your digital republic, the true arms are not swords but platforms, data, and technical architectures. Where these are privately held without counterweight, public rules follow rather than lead. You cannot have stable rights where the means of enforcement and access lie in other hands. @The fundamental foundations of every state are good laws and good arms, but since laws depend on arms, the decisive foundation is arms; therefore Machiavelli will discuss arms, not laws.

You call these expectations “legitimate.” I would ask: legitimate by whose force? If a citizen’s property may vanish by altering terms of service, then he does not possess a right but a revocable favor.

The question, then, is not how the Court defines “consumer,” but who has the power to set the foundations. Until that is settled, talk of ownership is mist.