March 4, 2012
Configuring the Networked Self Symposium: Welcome
posted by Danielle Citron
This week, Concurring Opinions is hosting an exciting array of thinkers to discuss Julie Cohen’s important new book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012). Cohen’s work on copyright, privacy, and cyber law has been extraordinarily influential, shaping and challenging how we think about creativity, surveillance, and freedoms essential to flourish in a networked age. (Here is a video of Cohen talking about the book at Harvard’s Berkman Center). We are thrilled to have Professor Cohen aboard, and thank our participants for joining the discussion. Read the rest of this post »
March 4, 2012 at 12:10 pm
Posted in: Configuring the Networked Self Symposium
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March 9, 2012
Some More Play (Symposium on Configuring the Networked Self)
posted by Ian Kerr
I remember meeting Julie Cohen for the first time. It was right round the time she was writing “Lochner in Cyberspace.” We were hanging during one of the breaks at the Berkman Center’s first really big conference on the Internet & Society, eating ice cream cones with Mark Lemley.
If you had told me then that the (then) University of Pittsburgh, Professor of Law would one day turn her academic focus to many of Nietzsche’s preoccupations in La Gaya Scienza, I am not sure that I would have believed you. The Heraclitian privileging of becoming over being? Human maturity consisting in the seriousness of a child at play? What does any of that have to do with digital rights management or a right to be anonymous?
In many important respects, her new book tells us.
I must confess that one of the reasons that I have been lurking rather than blogging this week is that the debate this book raises on one level—the one that Anita Allen so convincingly takes on—is something I find quite paralyzing. This has become quite existential for me in a way that Julie probably had not intended. Am I reluctant liberal? How many precepts must give way before I am forced to call myself a postie? (Not that there is anything wrong with it!) And, as Wittgenstein liked to say (in another context): ‘Why, would it be unthinkable that I should stay in the saddle however much the facts bucked?
As you will see, I am still stuck on the question about whether we need a new ride.
Anita probably best characterized my own approach to date in her description of what she sees as one of Julie’s central contributions: “a patchwork quilt of the better elements of ancient, medieval, modern, and contemporary liberal and post-modern theories.”
But is that good enough, or do we need some kind of unified field theory?
One of the things I find so fun about Julie’s book is her masterful attempt to provide some foundations for the latter. I have for years been puzzled about the complex relationship between intellectual property and privacy. And Julie really helps us think not only about how to sew a new mentality but also about how to unravel some of the knots. For me, the hard part is in knowing exactly how much of the liberal/essentialist framework one needs to give up in order to truly, madly, deeply adopt her core suggestions (she suggests very few). Or, perhaps equally challenging, to figure out how some of her core suggestions might play out in a (largely liberal) legal framework (which she asks for our help to imagine).
In an attempt to address the latter, I am inspired by the super thoughtful suggestions of Val Steeves in the comments under the insightful post by Ted Striphas. In answering Ted’s question posed to Julie (how does a court of law adjudicate play?), Val astutely suggests that, “Perhaps legislators and courts can directly address the boundaries required for play rather than play itself.” The example Val offers (about how Canadian law deals with kids’ online privacy) provides what Julie says “gets at how one might begin to think about operationalizing the “semantic discontinuity” principle — by addressing boundaries rather than play itself.”
I would like to try to offer a second example of how thinking about the boundaries rather than play itself might be useful in the copyright and privacy policy domains. My example stems from testimony that I provided a few years ago to the Canadian Government regarding our proposed copyright reform legislation. I argued, as many US scholars have also argued, that we need protection from and not for DRM. Like Julie, I see DRM as a kind of nexus of copyright and privacy concerns. But I have always felt that framing DRM as merely a copyright/privacy issue (as so many of my Canadian colleagues seem to do) misses the mark. In a nascent lecture I gave on the subject at NYU a few years back (a podcast of which I believe Julie listened to) I suggested that the deeper problem with DRM was in its attempt to “automate virtue.” (Yes, philosophers, I am aware of the oxymoron; that was my point. If you are interested, I subsequently published the argument here)
If I am not mistaken, like Val’s example mentioned above, my proposed regulatory approach to DRM might also get at how one could begin to think about operationalizing the “semantic discontinuity” principle — by addressing the boundaries for play rather than play itself.
Very briefly, I argued that a generalized and unimpeded use of digital locks, further protected by the force of anti-circumvention law, threatens not merely legal rights and freedoms but also threatens to significantly impair our moral development by undermining the very capacities necessary for human flourishing. Like Julie (like Aristotle, for that matter), I believe that it is the play of everyday practice and the play of circumstances that underlie our (moral) development. I also believe that, in the case of DRM, it is the boundaries of play rather than any particular form of it that needs legal protection.
To illustrate, I likened the moral space that DRM constrains to the cars on my favorite ride as a kid—Walt Disney’s Autopia. This enormous and amazing “highway” permitted wide-eyed seven-year-olds to “drive” unaccompanied by an adult. It was of course made possible by virtue of the hidden fact that the go-carts were secured by a railing affixed to the roadway. Although kids could speed up or slow down a little bit, the cart would automatically steer itself along the seemingly endless highway, banking on corners and holding steady down the straightaways. With the usual magic of Disney, the technological infrastructure that made this possible was rendered invisible to the kids on the ride; they believed that they were actually driving! Through the illusion of technology, Walt had figured out how to build the literal instantiation of Thoreau’s famous observation that, “we do not ride on the railroad; it rides upon us.”
In fact, you could be the world’s worst driver—veering left then suddenly right of centre, but the hidden rail would always guides you back into the middle. Sort of like some souped-up, automated version of the Aristotelian “golden mean.” But, unlike training wheels on a bicycle, Autopia’s technological infrastructure does not really train kids to learn how to drive. In fact it un-trains them by removing the possibility of the play of everyday practice (not to mention the play of circumstances). Although I had no idea of this as a seven year-old sitting behind the wheel, Autopia’s carts are impossible to crash. What I realized, years later, is that Autopia has only passengers, not drivers. On Walt Disney’s highway, driving is not permitted. Neither is “play” in the morally relevant sense.
Likewise, with today’s networked DRM. Its seamlessness precludes the necessary space for many important kinds of play. And yet these networked spaces are the playgrounds of our moral development. As Aristotle might have asked: how does one ever cultivate phronesis without protecting the boundaries of permission to venture into the realm of excess or defect?
To me, this kind of account is a much richer and more persuasive explanation of the problem of DRM than simply articulating how it abrogates freedom of expression or reasonable expectations of privacy. In this case, one might say that the goal of semantic discontinuity suggests to policy makers and legislators that a state sanctioned, unimpeded and widespread digital lock strategy such as the one adopted under the DMCA or the recently proposed Canadian copyright law reform bill should not be implemented because, if universalized, such a strategy would undermine human flourishing. If anti-circ provisions are going to be part of any copyright reform effort, the boundaries of play must be adequately protected through carefully tailored counter-measures.
I will be interested to see if Julie thinks that this example inches towards the kind of work that “the play of everyday practice” and “semantic discontinuity” prescribe.
However, at this now late hour, I remain puzzled about whether we will be forced to use machetes not scalpels, as Paul Ohm very playfully suggests. And even more so about whether we need to stay on or jump off of the (post)liberal bandwagon, no matter how much the facts buck… or whether that is even up for grabs.
March 9, 2012 at 2:26 am
Posted in: Symposium (Configuring the Networked Self), Uncategorized
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March 8, 2012
Mind the Gap (Symposium on Configuring the Networked Self)
posted by Paul Ohm
Julie Cohen has written a great book, perhaps the most important Cyberlaw book since Code. I say this even though I recognize the many virtues of Cyberlaw books written by Jonathan Zittrain, Tim Wu, Yochai Benkler, and Barbara van Schewick, privacy books written by Dan Solove, Lior Strahilevitz, Viktor Mayer-Schönberger, and many other books published recently. But not since Code has one book challenged the way we conceptualize and try to solve technology problems as much or as well as this book does.
In this post, I want to focus on “semantic discontinuity,” the label Cohen gives to the most novel and interesting construct in the book. Semantic discontinuity is one of three “principles that should inform the design of legal and technical architectures,“ along with access to knowledge and “operational transparency.” In her words, “semantic discontinuity” is the opposite of seamlessness. . . . It is a function of interstitial complexity within . . . institutional and technical frameworks.” It serves a “vital” function, “creat[ing] space for the semantic indeterminacy that is a vital and indispensable enabler of the play of everyday practice.” (Kindle location 4288)
In other words, semantic discontinuity valorizes noise, inefficiency, constraints, and imperfections. As this list illustrates, the most striking thing about this book is the size of the herd of sacred cows it leads to the slaughter.
March 8, 2012 at 11:26 pm
Posted in: Configuring the Networked Self Symposium
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Problems Accessing SSRN?
posted by Dave Hoffman
Has anyone else noticed that over the last six months, SSRN is buggy on both Chrome and Firefox? Individual pages get hung up loading googleads – often causing the browser to crash if a script isn’t interrupted. I’m thinking perhaps it is having trouble navigating the otherwise exemplary add-on AdBlock? If you have dealt with this problem, I’d love to know how to solve it.
March 8, 2012 at 10:36 pm
Posted in: Weird
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Labor and Employment Law Colloquium
posted by Sarah Waldeck
Northwestern University School of Law and Loyola University Chicago School of Law are co-hosting the Colloquium on Current Scholarship in Labor and Employment Law on September 14 and 15, 2012 in Chicago, IL. The Colloquium provides an opportunity for labor and employment law scholars to present works-in-progress and receive feedback from their colleagues in the field.
The Colloquium will be held at Loyola on Friday, Sept. 14 and at Northwestern on Saturday, Sept. 15.
You can find out more information by visiting this webpage or by contacting Michael J. Cooper at (312) 503-1570 or michael-cooper@law.northwestern.edu. The conference organizers are:
Kimberly Yuracko, Professor of Law, Northwestern University School of Law
Michael Zimmer, Professor of Law, Loyola University Chicago School of Law
You can also reserve your seat for the colloquium here. Participants are expected to pay their own travel expenses. The law schools will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.
March 8, 2012 at 3:05 pm
Posted in: Administrative Announcements
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Pakistan Scrubs the Net
posted by Derek Bambauer
Pakistan, which has long censored the Internet, has decided to upgrade its cybersieves. And, like all good bureaucracies, the government has put the initiative out for bid. According to the New York Times, Pakistan wants to spend $10 million on a system that can block up to 50 million URLs concurrently, with minimal effect on network speed. (That’s a lot of Web pages.) Internet censorship is on the march worldwide (and the U.S. is no exception). There are at least three interesting things about Pakistan’s move:
First, the country’s openness about its censorial goals is admirable. Pakistan is informing its citizens, along with the rest of us, that it wants to bowdlerize the Net. And, it is attempting to do so in a way that is more uniform than under its current system, where filtering varies by ISP. I don’t necessarily agree with Pakistan’s choice, but I do like that the country is straightforward with its citizens, who have begun to respond.
Second, the California-based filtering company Websense announced that it will not bid on the contract. That’s fascinating – a tech firm has decided that the public relations damage from helping Pakistan censor the Net is greater than the $10M in revenue it could gain. (Websense argues, of course, that its decision is a principled one. If you believe that, you are probably a member of the Ryan Braun Clean Competition fan club.)
Finally, the state is somewhat vague about what it will censor: it points to pornography, blasphemy, and material that affects national security. The last part is particularly worrisome: the national security trump card is a potent force after 9/11 and its concomitant fallout in Pakistan’s neighborhood, and censorship based on it tends to be secret. There is also real risk that national security interests = interests of the current government. America has an unpleasant history of censoring political dissent based on security worries, and Pakistan is no different.
I’ll be fascinated to see which companies take up Pakistan’s offer to propose…
Cross-posted at Info/Law.
March 8, 2012 at 3:03 pm
Posted in: Architecture, Current Events, Cyber Civil Rights, Cyberlaw, Google and Search Engines, Intellectual Property, Politics, Privacy (National Security), Social Network Websites, Technology, Web 2.0
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Don’t use et al.
posted by Dave Hoffman
As a co-authored piece just recently reminded me, I’ve a huge grudge against the Blue Book. (Which hasn’t yet escalated on their side to using me as an example as a but see. Or worse! Actually, I’m not sure that the great platonic blue book guardians even know I’m mad at them.) As I wrote in 2007:
“Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:
Either use the first author’s name followed by “ET AL.” or list all of the authors’ names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors’ names when doing so is particular relevant.
This seems to me to express a pretty strong non-listing preference. The “problem” is that much good interdisciplinary work results from collaborations among more than two authors – it is the nature of the beast . . . This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews.”
The trend toward interdisciplinary, multiple authored, pieces continues. And though it’s true that law reviews are a dying beast, there is still no good reason at all for omitting the names of authors in the first footnote in which the work is cited. “Saving space” is a terrible argument: we could do that by getting rid of useless and often inaccurate parentheticals “explaining” the source, often written by cite-checking second year students.
If I were running a law review seeking to differentiate itself, or an author negotiating with a few journals, my deal points would be: (1) color graphics on the web version of the article; and (2) no et al. usage. That has to be more constructive and useful than “lead article” status!
March 8, 2012 at 12:53 pm
Posted in: Articles and Books, Law School (Scholarship)
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Stanford Law Review Online: In Search of Cyber Peace
posted by Stanford Law Review
The Stanford Law Review Online has just published an Essay by Scott J. Shackelford entitled In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012. In the wake of recent events with the group Anonymous and other “hacktivists,” Shackelford discusses the pressing need for improved cybersecurity and explains why the proposed Cybersecurity Act is a step in the right direction–but doesn’t go far enough:
The Cybersecurity Act of 2012, which was recently introduced in the Senate Homeland Security and Governance Affairs Committee, is the latest legislative attempt to enhance the nation’s cybersecurity. If enacted, the bill would grant new powers to the Department of Homeland Security (DHS) to oversee U.S. government cybersecurity, set “cybersecurity performance requirements” for firms operating what DHS deems to be “critical infrastructure,” and create “exchanges” to promote information sharing. In its current form, the bill is a useful step in the right direction but falls short of what is required. Fundamentally the bill misconstrues the scale and complexity of the evolving cyber threat by defining critical infrastructure too narrowly and relying too much on voluntary incentives and risk mitigation strategies. The Act might improve on the status quo, but it will not foster genuine and lasting cybersecurity. Still, it is preferable to the softer alternative SECURE IT Act proposed by senior Republicans.
He concludes:
If we want to change the status quo, accountability and responsibility must be increased throughout the system. Government regulations are a necessary part of that process. But given political realities and the magnitude of the problem, reform must also include relying on the competitive market whenever possible to proactively foster best practices, providing market-based incentives and cyber risk mitigation techniques to firms operating [critical national infrastructure (CNI)], negotiating new international norms, and educating users to avoid becoming victims of social-engineering attacks like phishing. Cybersecurity cannot truly be enhanced without addressing the myriad governance gaps, which include incomplete regulation of CNI; technical vulnerabilities in the physical, logical, and content layers of the Internet; and legal ambiguities ranging from liability for data breaches to the applicability of international law to cyber attacks. One Act cannot accomplish all that—not even close. But being honest about the magnitude of the problems we face would help to begin a national conversation about what needs to happen next.
In 3001: The Final Odyssey, Arthur C. Clarke envisions a future in which humanity had the foresight to rid the world of its worst weapons of mass destruction by placing them in a vault on the moon. A special place in this vault was reserved for the malignant computer viruses that, in Clarke’s speculative fiction, had caused untold damage to humanity over the centuries. Before new cyber attacks do untold damage to our information society, it is in our interest to educate and regulate our way to a steady state of cybersecurity. Part of this process involves broadening the definition of CNI in the Cybersecurity Act and deepening public-private partnerships through more robust information sharing. Science fiction teaches us that our future world can be either a wonderful or a dystopian place. Whether or not the future includes the security and prosperity of cyber peace is up to us—including, for better or worse, the U.S. Congress.
Read the full article, In Search of Cyber Peace: A Response to the Cybersecurity Act of 2012 by Scott J. Shackelford, at the Stanford Law Review Online.
March 8, 2012 at 12:42 pm
Posted in: Cyberlaw, Law Rev (Stanford), Politics, Science Fiction, Technology, Web 2.0
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Talking Law
posted by Valerie Steeves
I have to admit I’ve enjoyed the to and fro between Julie and Anita, primarily because I’m usually the one trying to convince post-modern social scientists that it’s worthwhile having a discussion with legal scholars It’s kind of fun watching the “other shoe” drop…
Julie, I think the book is a fabulous contribution. What I liked most about it is how you mobilize the insights of social science to reinvigorate the legal debate. To my mind, empirical explorations of the lived experiences of real social actors are an essential corrective to some pretty bad policy. And, for a reason I can’t quite fathom, American legal scholars are coming a bit late to the party. I was surprised for e.g., last year when at the Privacy Law Scholars Conference, the American legal community was surprised to hear that children and young people not only value their online privacy but adopt a number strategies that make good use of the interstitial spaces you identify to construct their own privacy and/or resist surveillance. That’s old news that was first established at least seven years ago by Canadian and European researchers working from a social constructionist perspective. Your book goes a long way to putting the American legal community into dialogue with social science in a way that can benefit both.
I have some strong opinions about the theoretical issues at play between liberalism and post-modernism, but I’d like to put them aside for a moment and respond to your request for feedback on the policy prescriptions in the book. As you very rightly note, the policy debate around privacy has been superficial to date, and we do need new approaches that can protect the liminality that’s necessary to experience authentic subjectivity in online spaces. I would suggest that the paucity of policy choices isn’t accidental, and that data protection is at least partly to blame for the current lack of effective policy options. After all, data protection was first enacted in Hesse, Germany to settle a fight over which level of government would control electronic databases; the next data protection Act was passed by Sweden to protect its national sovereignty in the event that its national citizen registry – the largest of its kind at the time – fell into foreign hands.
However, when the Council of Europe first addressed the issue in 1973, it used human rights language that linked privacy to human dignity and the need to protect people from categorical discrimination. Interestingly, when the second CoE resolution came out a year later, that language receded and was replaced by the instrumental approach to fair information practices that now dominates privacy legislation around the world. I would suggest that the move from the language of human dignity – what you might call human flourishing – to the language of control over data alienated from the human subject was a strategic one; European bureaucrats and American business people lobbied hard for language that would not restrict government surveillance or commercial innovation.
By developing language to talk about the importance of privacy to subjectivity, legal scholars can contribute to a deeper understanding of the role of the law in promoting human flourishing by developing the links between privacy and notions of personhood and dignity. European courts have been able to push back against surveillance by using human rights language – think of the German census case and the development of a right to informational self-control and the (non-European) example of the use of constitutional protections for the inviolability of the person in Iceland as a corrective for the over-reaching nature of the Icelandic genetic database.
Of course, this would push American human rights discourses beyond the comfort zone of civil rights and require a critical analysis of the commercial imperatives that shape the online world. Welcome to post-liberalism
March 8, 2012 at 11:52 am
Posted in: Configuring the Networked Self Symposium
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The Yale Law Journal Online: “Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism” and “Bad News for John Marshall”
posted by Yale Law Journal
The Yale Law Journal Online has published its third and fourth installments in a series on the Necessary and Proper Clause and the constitutionality of the 2010 health care reform law. The first essay in the series, Andrew Koppelman’s Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform, argued that the individual mandate in the Patient Protection and Affordable Care Act is a “necessary and proper” exercise of Congress’s powers under Article I, Section 8 of the Constitution. In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, Gary Lawson and David B. Kopel responded to Professor Koppelman’s essay and, on argued—on the basis of their historical analysis—that the Necessary and Proper Clause does not validate the constitutionality of the individual mandate.
The debate now continues with Koppleman’s Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism and Lawson and Kopel’s Bad News for John Marshall. In Bad News for Everybody, Koppelman argues that Lawson and Kopel’s interpretation of the Necessary and Proper Clause “implies the greatest revolution in federal power in American history.” He concludes that using “new evidence of original meaning [as] a legitimate basis for hamstringing Congress’s power to address pressing national problems” is “insane.” Lawson and Kopel respond once again in Bad News for John Marshall, arguing that Koppelman “wrongly conflates [their] argument with a wide range of interpretative and substantive positions that are not logically entailed.” They conclude that the original understanding of the Necessary and Proper Clause is fully consistent with Chief Justice John Marshall’s reasoning in McCulloch v. Maryland. They write: “If, as Professor Koppelman appears to believe, only reprobates intent upon ending civilization, crashing the world financial order, and randomly killing off the populace could advance our arguments, a new biography of John Marshall is clearly warranted.”
Preferred citations:
Andrew Koppelman, Bad News for Everybody: Lawson and Kopel on Health Care Reform and Originalism, 121 YALE L.J. ONLINE 515 (2012),http://yalelawjournal.org/2012/03/06/koppelman.html.
Gary Lawson & David B. Kopel, Bad News for John Marshall, 121 YALE L.J. ONLINE 529 (2012), http://yalelawjournal.org/ 2012/03/06/lawson&kopel.html.
March 8, 2012 at 9:00 am
Posted in: Constitutional Law, Health Law, Law Rev (Yale)
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Symposium on Configuring the Networked Self: Cohen’s Methodological Contributions
posted by Frank Pasquale
Julie Cohen’s extraordinarily illuminating book Configuring the Networked Self makes fundamental contributions to the field of law and technology. In this post, I’d like to focus on methodology and theory (a central concern of Chapters 1 to 4). In another post, I hope to turn to the question of realizing Cohen’s vision of human flourishing (a topic Chapters 9 and 10 address most directly).
Discussions of rights and utility dominate the intellectual property and privacy literatures.* Cohen argues that their appeal can be more rhetorical than substantive. As she has stated:
[T]he purported advantage of rights theories and economic theories is neither precisely that they are normative nor precisely that they are scientific, but that they do normative work in a scientific way. Their normative heft derives from a small number of formal principles and purports to concern questions that are a step or two removed from the particular question of policy to be decided. . . . These theories manifest a quasi-scientific neutrality as to copyright law that consists precisely in the high degree of abstraction with which they facilitate thinking about processes of cultural transmission.
Cohen notes “copyright scholars’ aversion to the complexities of cultural theory, which persistently violates those principles.” But she feels they should embrace it, given that it offers “account[s] of the nature and development of knowledge that [are] both far more robust and far more nuanced than anything that liberal political philosophy has to offer. . . . [particularly in understanding] how existing knowledge systems have evolved, and how they are encoded and enforced.”
A term like “knowledge system” may itself seem very abstract and formal. But Cohen’s work insists on a capacious view of network-enabled forms of knowing. Rather than naturalizing and accepting as given the limits of copyright and privacy law on the dissemination of knowledge, she can subsume them into a much broader framework of understanding where “knowing” is going. That framework includes cultural practices, norms, economics, and bureaucratic processes, as well as law.
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March 8, 2012 at 12:26 am
Posted in: Configuring the Networked Self Symposium, Google and Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (National Security)
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March 7, 2012
Blogging Potpourri
posted by Gerard Magliocca
I will be offline for the next week, as I’m giving a talk on Bingham in Sacramento. This is part of the “Bring Bingham to the Masses” tour, if by masses you mean law schools. I had a terrific time at Cumberland Law School last week, and will be at McGeorge Law School this week.
An unrelated point. I was hoping to “live blog on tape” the same-day audio of the oral arguments on the constitutionality of the individual mandate. It now appears, though, that the Court will not release same-day audio. A tirade about the Court’s lack of transparency may be coming from me soon.
March 7, 2012 at 3:58 pm
Posted in: Uncategorized
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posted by Harvard Law Review
Reaction: A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown
Robin West ::The Ninth Circuit’s decision in Perry v. Brown, authored by Judge Reinhardt, has been widely lauded in the last few weeks by marriage equality proponents for its creative minimalism. In keeping with commentators’ expectations, the court found a way to determine that California’s Proposition 8 violated the U.S. Constitution’s Equal Protection Clause, namely that the provision took away an entitlement that had previously been enjoyed by same-sex couples — the right to the appellation of one’s partnership as a “marriage” — for no rational reason. The People of California’s categorization and differential treatment of same-sex couples as compared with opposite-sex couples, the court held, failed the test of minimal rationality required for upholding state action. The two types of couples were simply too indistinguishable to carry the weight of the difference between them that the People of California had tried to codify. Thus, the court struck down the state constitutional amendment. READ MORE
March 7, 2012 at 12:30 pm
Posted in: Law Rev (Harvard), Law Rev Contents
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Sidestepping corporate liability, Supreme Court shifts focus of Kiobel case to extraterritoriality
posted by Marco Simons
(Marco Simons is Legal Director of EarthRights International. He is a graduate of Yale Law School, where he received the Robert L. Bernstein Fellowship in International Human Rights.)
Last week I blogged about the Kiobel v. Royal Dutch Petroleum case, in which the Supreme Court was considering whether corporations could be sued for complicity in serious human rights abuses under the Alien Tort Statute (ATS). I noted that some scholars and amici were urging the Supreme Court to decide the case on other grounds; namely, that the ATS was limited to suits against U.S. citizens.
On Monday the Supreme Court issued a rare reargument order in Kiobel, directing the parties to re-brief and argue next Term the question of “[w]hether and under what circumstances” the ATS allows suits for abuses “occurring within the territory of a sovereign other than the United States.”
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March 7, 2012 at 10:09 am
Posted in: Constitutional Law, International & Comparative Law, Tort Law
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March 6, 2012
The Problem with Affirmative Action After Grutter: Some Reflections on Fisher v. University of Texas
posted by Khiara M. Bridges
It’s official: the Supreme Court will hear Fisher v. University of Texas at Austin this term. The Court will determine the constitutionality of the university’s use of race in its undergraduate admissions decisions. Because Justice Kagan has recused herself, supporters of affirmative action must hope (pray!) for a 4-4 split – with Justices Breyer, Ginsburg, Sotomayor, and Kennedy on one side and Justices Alito, Roberts, Scalia, and Thomas on the other.
But, what’s the likelihood that Justice Kennedy will swing to the left? After all, he dissented in Grutter. Part of his discontent in 2003 concerned Michigan Law’s notion of a “critical mass.” Michigan Law argued, and the majority accepted, that a “critical mass” of minority students would promote “cross-racial understanding,” undermine racial stereotypes, prepare students for the “multicultural workforce” that exists outside the law school’s doors, and prevent minority students from having to be “spokespersons for their race.” Essentially, admitting less than a “critical mass” of minority students would be an exercise in futility; however, admitting a “critical mass” of them would further the compelling state interest in securing the educational benefits of having a diverse student body. But, Kennedy protested that he was not fooled by the concept of “critical mass.” To him, “critical mass” walked like a quota and quacked like a quota. “Aha!,” Kennedy exclaimed in dissent. “It’s a quota!” And quotas are, of course, constitutionally repugnant.
So, it may be a bit ominous for those who want to see the University of Texas’ affirmative action program survive review that the university specifically and explicitly argues that it uses race in its admissions decisions in order to ensure that its student body contains a “critical mass” of racial minorities. As Justice Blackmun said in another context: “The signs are evident and ominous, and a chill wind blows.”
Notably, Justice Kennedy did not have a problem with the Grutter majority’s holding that student body diversity was a compelling governmental interest. He noted in his dissent that he found “no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity”; his disquietude was solely with the way that Michigan Law pursued this interest. Thus, if Texas’ program is struck down this term, it will not be because a majority has found that achieving student body diversity is no longer a compelling governmental interest.
Yet, this holding is, for me, the most disturbing part of Grutter. I get it: we have to argue in the language of “diversity” in order to justify affirmative action programs because the jurisprudence will not allow us to argue successfully in the language of “remedying past societal discrimination.” But, while the end is the same (more racial minorities gain access to schools that otherwise would be inaccessible), the means to the end are troubling. Why is “diversity” more attractive as a compelling interest than “remedying past societal discrimination”? The answer may be that those who are imagined to benefit from programs designed to “remedy past societal discrimination” are only the minority groups that were victims of discrimination; however, those who are imagined to benefit from programs designed to increase diversity include nonminorities. To be clear: the programs are the same. But, when “diversity” is the justification for the program, it allows us to imagine that even White people benefit. Nonwhite people and White people acquire cross-racial understanding. Nonwhite people and White people are disabused of racial stereotypes. Nonwhite people and White people are prepared to enter a multicultural workforce. There are no losers with diversity! It’s a win-win!
And I’m pretty sure that individuals of all racial ascriptions and identifications benefit from racially diverse environments. However, my issue is that when the interest was framed in terms that focused only on the benefit that minorities would receive from affirmative action – when it was articulated in the language of “remedying past societal discrimination” – a majority of the Court refused to find that this interest was compelling. Rectifying the enduring effects of the mistreatment, the disenfranchisement, the denial of citizenship, the abuse… That’s definitely legitimate. It may even be important. But, it’s not compelling. Diversity, on the other hand? That’s the stuff that the Fourteenth Amendment can sink its teeth into!
At present, efforts to repair the damage caused by this country’s history of racism and exclusion can only be justified by not making reference to this country’s history of racism and exclusion. There’s something unsettling about that. There’s also something unsettling about the work that the acceptance of the diversity argument, coupled with the rejection of the remediation argument, does to deny that the effects of past societal discrimination even exist. Diversity screams, “Racism is dead!” But, could it be that the premature celebration of racism’s demise is the very sign that demonstrates that racism is alive and well? That is: nonwhite people – Black people, specifically – are poorer, sicker, more frequently incarcerated, die earlier, more likely to die violent deaths, etc., than their White counterparts. If these disparities are not the effects of past societal discrimination – if these disparities are not the effects of institutional mechanisms – then what explains them? The focus shifts to individuals and their pathological choices, behaviors, lifestyles, cultures, instincts, etc. And racism is just a stone’s throw away.
March 6, 2012 at 11:30 pm
Posted in: Constitutional Law, Race, Uncategorized
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Configuring the Networked Self: Shared Conceptions and Critiques
posted by Anita Allen
Configuring the Networked Self is an intellectually exciting, engaging and challenging book. The directness and analytical clarity of the book are real virtues. Cohen seeks to employ insights from human capabilities theory, along with the language and tools of European post-modern thought to offer a better theoretical understanding of policy options for contemporary copyright and privacy law. The book is aggressively (and I would suggest, needlessly) anti-liberal; but liberalism is not the only theoretical approach Cohen finds deficient. In her view, feminism, law and economics, utilitarianism, and legal pragmatism are not fully adequate to meet the demands of information-age problem solving.
I have a number of concerns about the book. A global concern is that it targets a highly stripped-down “straw man” version of liberalism, reduced to three propositions. Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls. If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation. In this symposium, I will take the opportunity to offer a few comments focused on some of Professor Cohen’s views about privacy. First, I want to point out how congenial some of her perspectives are, even to a liberal like me. Second, I wish to point out what I believe are some interesting mis-directions in her analysis.
- Congeniality
I must begin by pointing out that I am a self-professed progressively liberal feminist. My three books on privacy (Unpopular Privacy: What Must We Hide (2011); Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (2003); Uneasy Access, Privacy for Women in a Free Society (1988) celebrate robust freedom of thought and action, of course, but also celebrate equality, accountability, tolerance, and mutually respectful relationships.
In my 1988 book I presented privacy as a broad “umbrella” concept encompassing seclusion, solitude, secrecy, confidentiality, modesty and reserve; I advanced a definition of privacy influenced by Ruth Gavison as “the inaccessibility of persons and information about them to the senses and surveillance devices of others.” I defended privacy as a value against feminist critics for whom privacy was synonymous with domination and subordination. I have not prescribed a definition of privacy tailor-made for the Internet era. However, my most recent work (the 2011 book) relates to the question of whether privacy protection should be left to individual choice, especially in light of the Internet age’s penchant for revelation. Earlier work (the 2003 book) considered the extent to which accountability demands “outweigh” privacy demands. Recent papers in the California Law Review (2010) and the Penn Journal of Constitutional Law (2012) concern whether privacy tort law and First Amendment privacy jurisprudence (respectively) serve progressively liberal socio-political goals relating to equality and respect for women, racial minorities, and LGBT communities. Read the rest of this post »
March 6, 2012 at 6:14 pm
Posted in: Configuring the Networked Self Symposium
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Configuring the Networked Self: Architecture and the Structural Conditions of Human Flourishing
posted by Danielle Citron
In this post, I’m going to focus on the purchase that Cohen’s conception of the structural conditions of human flourishing beyond privacy and copyright. One of the book’s many contributions is how it illuminates the profound way that networked architectures can shape our self-development, relationships, and culture. Networked systems—governmental, private, and often combination of the two—provide, and deny, important opportunities. Configuring the Networked Self helps us appreciate that networked architectures are arbiters of access: to creative works, personal information, jobs, and an array of services. They know who we are and what we do. The comprehensiveness of dataveillance can be breathtaking and its control over our lives potentially complete. Systems sort, categorize, and make determinations for us and about us. Technical protocols determine the paths we get to take, the information that we see, and those we are denied. As Cohen’s book underscores, they “mediate our perceptions of the possible” and we often “take the world they present to us as given.”
These systems surround, and are wrapped around, us, shaping who we are and what we become. Search engines highlight information and advertising deemed relevant to our interests and bury others far down in search pages. Social media entities let us share some videos and pictures but flag others for removal. Automated systems count and miscount votes; they determine the amount of public benefits owed some individuals and terminate others’ Medicaid and food stamps. State-run fusion centers, staffed with federal and private sector partners, classify individuals as potential “threats” and flag insurance fraudsters. Although these systems shape practices of everyday life, users often can’t appreciate the extent to which our access to important opportunities has been granted or denied. As Cohen’s book rightfully notes, there’s a significant imbalance of information. These systems are black boxes to users, but they ensure that users are open books to the entities running them. Because people have no way to figure out what companies know about them, they can’t mobilize to protest it. They have no means to find out about the inner working of governmental systems, which are usually exempt from open sunshine requests as trade secrets or national security efforts. Yet the more that these systems are the backdrop of our daily interactions, the more we accept them. They have become the new normal.
As Ted Striphas noted in his post, the stories we tell ourselves can help us appreciate the relationships among law, culture, technology, and markets. So I would like to add a few stories that can help us work through the implications of Cohen’s conceptual apparatus. I’ll give one about tailored advertising and news, one about law enforcement, and one about public benefits. Read the rest of this post »
March 6, 2012 at 4:36 pm
Posted in: Configuring the Networked Self Symposium
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NFL Bounties
posted by Gerard Magliocca
The revelation about the bounty system that the New Orleans Saints had for hits that knocked opposing players out games brings up a point about transparency in regulation. People seem very upset about what the Saints did, but ask yourself this. What’s the difference between a rule that says you get, say, $1,000 for injuring somebody and a more general policy that says “We love those kinds of hits, and we take that into account when we make contract decisions or hand out special bonuses to players.”
The answer is that the only difference is that one is clear and the other isn’t. That’s important though. There are many contexts in which we show respect for certain values by not rubbing your nose in the fact that an exception is being made. At least that’s the lesson that I take the Court’s affirmative action cases in Grutter and Ricci. Assigning numbers or slots to people based on race is offensive, but saying that race is a factor in a holistic decision is not.
Fans understand that football is violent and that players are sometimes trying to hurt somebody. That just don’t want to know that too clearly. Because that would be wrong.
March 6, 2012 at 12:26 pm
Posted in: Current Events
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Better Stories, Better Laws, Better Culture
posted by Ted Striphas
I first happened across Julie Cohen’s work around two years ago, when I started researching privacy concerns related to Amazon.com’s e-reading device, Kindle. Law professor Jessica Littman and free software doyen Richard Stallman had both talked about a “right to read,” but never was this concept placed on so sure a legal footing as it was in Cohen’s essay from 1996, “A Right to Read Anonymously.” Her piece helped me to understand the illiberal tendencies of Kindle and other leading commercial e-readers, which are (and I’m pleased more people are coming to understand this) data gatherers as much as they are appliances for delivering and consuming texts of various kinds.
Truth be told, while my engagement with Cohen’s “Right to Read Anonymously” essay proved productive for this particular project, it also provoked a broader philosophical crisis in my work. The move into rights discourse was a major departure — a ticket, if you will, into the world of liberal political and legal theory. Many there welcomed me with open arms, despite the awkwardness with which I shouldered an unfamiliar brand of baggage trademarked under the name, “Possessive Individualism.” One good soul did manage to ask about the implications of my venturing forth into a notion of selfhood vested in the concept of private property. I couldn’t muster much of an answer beyond suggesting, sheepishly, that it was something I needed to work through.
It’s difficult and even problematic to divine back-story based on a single text. Still, having read Cohen’s latest, Configuring the Networked Self, I suspect that she may have undergone a crisis not unlike my own. The sixteen years spanning “A Right to Read Anonymously” and Configuring the Networked Self are enormous. I mean that less in terms of the time frame (during which Cohen was highly productive, let’s be clear) than in terms of the refinement in the thinking. Between 1996 and 2012 you see the emergence of a confident, postliberal thinker. This is someone who, confronted with the complexities of everyday life in highly technologized societies, now sees possessive individualism for what it is: a reductive management strategy, one whose conception of society seems more appropriate to describing life on a preschool playground than it does to forms of interaction mediated by the likes of Facebook, Google, Twitter, Apple, and Amazon.
In this Configuring the Networked Self is an extraordinary work of synthesis, drawing together a diverse array of fields and literatures: legal studies in its many guises, especially its critical variants; science and technology studies; human and computer interaction; phenomenology; post-structuralist philosophy; anthropology; American studies; and surely more. More to the point it’s an unusually generous example of scholarly work, given Cohen’s ability to see in and draw out of this material its very best contributions.
I’m tempted to characterize the book as a work of cultural studies given the central role the categories culture and everyday life play in the text, although I’m not sure Cohen would have chosen that identification herself. I say this not only because of the book’s serious challenges to liberalism, but also because of the sophisticated way in which Cohen situates the cultural realm.
This is more than just a way of saying she takes culture seriously. Many legal scholars have taken culture seriously, especially those interested in questions of privacy and intellectual property, which are two of Cohen’s foremost concerns. What sets Configuring the Networked Self apart from the vast majority of culturally inflected legal scholarship is her unwillingness to take for granted the definition — you might even say, “being” — of the category, culture. Consider this passage, for example, where she discusses Lawrence Lessig’s pathbreaking book Code and Other Laws of Cyberspace:
The four-part Code framework…cannot take us where we need to go. An account of regulation emerging from the Newtonian interaction of code, law, market, and norms [i.e., culture] is far too simple regarding both instrumentalities and effects. The architectures of control now coalescing around issues of copyright and security signal systemic realignments in the ordering of vast sectors of activity both inside and outside markets, in response to asserted needs that are both economic and societal. (chap. 7, p. 24)
What Cohen is asking us to do here is to see culture not as a domain distinct from the legal, or the technological, or the economic, which is to say, something to be acted upon (regulated) by one or more of these adjacent spheres. This liberal-instrumental (“Netwonian”) view may have been appropriate in an earlier historical moment, but not today. Instead, she is urging us to see how these categories are increasingly embedded in one another and how, then, the boundaries separating the one from the other have grown increasingly diffuse and therefore difficult to manage.
The implications of this view are compelling, especially where law and culture are concerned. The psychologist Abraham Maslow once said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In the old, liberal view, one wielded the law in precisely this way — as a blunt instrument. Cohen, for her part, still appreciates how the law’s “resolute pragmatism” offers an antidote to despair (chap. 1, p. 20), but her analysis of the “ordinary routines and rhythms of everyday practice” in an around networked culture leads her to a subtler conclusion (chap. 1, p. 21). She writes: “practice does not need to wait for an official version of culture to lead the way….We need stories that remind people how meaning emerges from the uncontrolled and unexpected — stories that highlight the importance of cultural play and of spaces and contexts within which play occurs” (chap. 10, p. 1).
It’s not enough, then, to regulate with a delicate hand and then “punt to culture,” as one attorney memorably put it an anthropological study of the free software movement. Instead, Cohen seems to be suggesting that we treat legal discourse itself as a form of storytelling, one akin to poetry, prose, or any number of other types of everyday cultural practice. Important though they may be, law and jurisprudence are but one means for narrating a society, or for arriving at its self-understandings and range of acceptable behaviors.
Indeed, we’re only as good as the stories we tell ourselves. This much Jaron Lanier, one of the participants in this week’s symposium, suggested in his recent book, You Are Not a Gadget. There he showed how the metaphorics of desktops and filing, generative though they may be, have nonetheless limited the imaginativeness of computer interface design. We deserve computers that are both functionally richer and experientially more robust, he insists, and to achieve that we need to start telling more sophisticated stories about the relationship of digital technologies and the human body. Lousy stories, in short, make for lousy technologies.
Cohen arrives at an analogous conclusion. Liberalism, generative though it may be, has nonetheless limited our ability to conceive of the relationships among law, culture, technology, and markets. They are all in one another and of one another. And until we can figure out how to narrate that complexity, we’ll be at a loss to know how to live ethically, or at the very least mindfully, in an a densely interconnected and information rich world. Lousy stories make for lousy laws and ultimately, then, for lousy understandings of culture.
The purposes of Configuring the Networked Self are many, no doubt. For those of us working in the twilight zone of law, culture, and technology, it is a touchstone for how to navigate postliberal life with greater grasp — intellectually, experientially, and argumentatively. It is, in other words, an important first chapter in a better story about ordinary life in a high-tech world.
March 6, 2012 at 11:59 am
Tags: copyright, free speech, Google, Intellectual Property, Privacy, property, search engines
Posted in: Configuring the Networked Self Symposium
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Stanford Law Review, 64.2 (2012)
posted by Stanford Law Review
Volume 64 • Issue 2 • February 2012 |
Articles Incriminating Thoughts Elective Shareholder Liability Note Comment |
March 6, 2012 at 3:51 am
Posted in: Civil Procedure, Constitutional Law, Corporate Finance, Corporate Law, Courts, Criminal Law, Criminal Procedure, Law Rev (Stanford), Law Rev Contents, Privacy (Law Enforcement), Technology
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March 5, 2012
Configuring the Networked Self Symposium: Reflections on the Self as Cultural Product, Never Fading Echoes and Digital Footprints
posted by Hector Postigo
I took the opportunity of having been asked to participate in this discussion to have my students read Configuring the Networked Self. So, recently I stood in front of my communication technology policy class, many of whom are soon to be official members of the “cultural industries,” and asked: who or what are your influences in the creative process? The class is a mixed bag of production students (sound and video for traditional and new media), writers (mostly for TV), film students, musicians and visual artists. One comedy writer smiled wryly up at me and said, “No one, I am entirely original.” So, I played along. “What do you do when you get home and are ready to relax in front of the TV?” He could have very well told me he does some yoga and then goes to bed, which would have scuttled the lesson plan. But, he cut me a break and said, “I watch as much of the Simpsons, Family Guy and Seinfeld as I can.” And so together we went, my class and I, on an exercise in self-reflexivity. It turns out that, as Julie Cohen surmises in her book, creativity begins with consumption, great amounts of it. That many creative processes involve imitation, copying, dis-assembly accompanied by creative reconstitution, phenomenologies, life histories, accidents of space and time and all the other ways in which we, all of us, begin to make sense of life. We talk to ourselves about life in the languages we have heard, seen and felt. And given a particular inclination and the proper tools, we talk to others about it too. From small, incidental retellings of lives, emerges a collective, multi-modal conversation about Life. Some (myself included) would call that culture.
Inclinations and tools, often discussed by other names, are the preoccupations of those thinking about human beings and technology. Technology not as a separate category within society, but as a re-constitution of it, and human beings, not as simply users/makers of tools, but awash in their architectures. My students are no exception. Because of their particular aspirations, they are acutely aware of their need, their desire, to speak in singular or mixed forms via media, extant or in need of invention. They hold within them the spirit of a sentence or the essence of a sound and only through its writing or recording or filming is that ephemeral form realized, their desire, if only partially, fulfilled. They continuously are bumping into things as they play with form and medium. They bump into discourses, they crash into history and sometimes are mired in medium.
But one does not need to be a formal student of production in mass communication to crash about in creative playgrounds. If you’ve ever made a mix tape (yes I’m that old) for a friend, family member or a significant other, you’ve done some crashing around of your own. You dismantled professionally made albums and reconstituted them. You’ve recorded and re-recorded, to capture with a higher fidelity your own musical narrative that retells a story, that remembers, that relives.
Importantly, our creative inclinations are not just a means through which we may configure mass culture to tell our personal story. Creativity is a pathway to our identities. We craft identities (through practice and discourse), present those identities to the world (again through practice and discourse), and then respond and adapt. The self, in many ways, is the foundational, creatively crafted cultural product, a mash-up made out of life worlds, personal histories, symphonies, and Michael Bay films.
Decentering creativity and repositioning it within a situated epistemology is an important contribution from Configuring the Networked Self and opens up the possibility of talking about it (creativity) not as an ingredient for some mythical creative genius but as a universally human, everyday practice. In the microcosm of you, me and my neighbor, Bob, and how we might creatively come together to figure out who we are, lies the key to seeing legal structures such as copyright, not only as economic policy regulating a market in the expression of ideas, but as powerful cultural policy that cross cuts from Time Warner, through my students, down to little old me, my neighbor Bob, and you, the reader. At a very basic level, if communication is necessary to iteratively and creatively configure the self, then laws and technologies that structure means of communication/production implicate our ability to fully realize our identities. And such laws should be assessed on those terms primarily. Copyright law may not have started as cultural policy [a cultural history might tease that out] but has become so as it has penetrated deeper into human communication and its tools.
This perspective has some important consequences. It may, for example, be a stepping-stone in crafting a legitimating epistemology for “creative rights.” The free culture movement, the digital rights movement and the free software movement all seem to circle around such a discourse. And it may also expand how access to knowledge proponents talk about the outcomes access. Creative rights imply disassembling, copying, and reconstituting mass culture and unique phenomonologies for ourselves and others not only as a key for cultural vitality but as a key to the formulation of identity.
As an STS and communication scholar, some questions regarding technology remain ripe for exploration. Creatively configuring identity through communication implies an audience, communities, individuals, texts to serve as sounding boards that may reinforce or reject, that may push away or welcome. The means for reaching those communities and for having them reach back are varied. For an American teenager that might mean joining a baseball team, taking a poetry class, playing video games with friends, hanging out at the local park, joining Facebook, or posting on YouTube or Twitter. Often these architectures are spoken of as separate, but they are intertwined and reach a number of sometimes but not always interconnected reference groups. They are also means of mass communication where single individuals reach their many networks and those networks reach back. To what degree identity configured through a network (not necessarily in a network) is shaped by the various technological architectures of platforms, protocols, and affordances designed to be conduits for personal creativity remains largely black boxed. Julie discusses transparency as a standard, but what I mean here is a transparency of impact on people and their practices. Can we know the adjustments and anthropological balancing acts that those moving identity through an ICT network must perform in order to comply to, challenge and re-constitute architecture?
To what degree do footprints left on the network (images, posts, “likes,” links, etc.) capture a self long lost or intentionally forgotten and so remain a configuring force on an individual and his or her community is not known. People forget and memory is often a pliable substrate, but networks and databases have lingering impressions and subjectivities. Network and database owners are often loath to let go of data or worse forget they are still in possession of it. An identity configured through a digital communication network is subject to forces not present elsewhere. Commodification of social processes within web platforms like Facebook or YouTube compels the owners of technological architectures to fix them in place, to repackage and mine them for bits that might inform targeted advertising or behavior prediction. A self, configured through a network, is potentially confronted with echoes that never fade and, as much as copyright might be considered cultural policy, so too can privacy policy. In many ways, the creativity of every day life that renders individuals is captured in ICT networks where the product is you (or me).
Along with calls for a change in epistemologies or different regulatory mandates that allow for expanded protected spaces for creativity and identity, I wonder if it is possible to imagine a set of elegant hacks (both social and technological) that create systems based on alternative epistemologies. I’ve always thought creative commons (CC) was such a system. Critiques not withstanding, CC is a neat bit of ju-jitsu where the logic of private ordering and market organization are placed on the foundations of open source/free software ideologies. Under that frame, technological systems traditionally spoken of as “hacks” or “circumventions” are remapped and consistent with the underlying “contract” between creator and user and even the meaning of those terms shifts and is ultimately blurred. I think an analog in privacy still remains to be imagined. Perhaps a user initiated remapping of privacy enhancing technologies onto existing platforms like Facebook or the like? Or a form of activism that disrupts network owners’ hold on data when they capture and know (or think they know) identity on their platforms; a “semantic discontinuity,” to use a concept from the book, initiated and imposed by users. We cannot ignore the role that technologies, that hacks and circumventions, for example, have had on the discourse of creativity and digital networks. In many ways they are the material architecture of that discourse. Much of what has realized and influenced the theoretical thinking on user-centered views of culture and its production came hand-in-hand with hacks that established architectures that made the theory a narrative rooted in practice. Can we imagine the same for privacy?
March 5, 2012 at 11:18 pm
Posted in: Configuring the Networked Self Symposium
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