Panel discussion on Julie E. Cohen’s great new book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice.
Danielle Citron, U. Md.: Concurring Opinions will have an online symposium on the book this coming March. Helps understand importance of architecture on human development. Networks know who we are and sort, categorize, and make decisions for and about us. Arbiters of access to knowledge, jobs, etc. Pervade our daily lives. Search engines highlight things they think are relevant to us; companies give us social media influence scores and sell those to advertisers; automated systems count and miscount votes, and remove voters from rolls; determine how much Medicaid etc. will be paid for a person; flag individuals as potential terrorists/threats. These systems have tremendous impact on the play of everyday life/creativity, but there’s a huge info imbalances. To them, users are open books; to us, they’re black boxes. Can’t demand of private parties or government to find out what they know, making it difficult to protest.
Examples: Advertising/marketing companies mine info to find valuable customers. Ads and news can be tailored to demographics and interests. Someone who’s unemployed may see ads for payday loans, fast food, for-profit schools; in ad terms, she’s known as “waste” and so the news she sees will be tailored to that—military recruitment, vocational schools. Architecture influences culture.
Md. started surveying protest groups against the Iraq war. Physical surveillance and also data mining to identify activists as “terrorists,” including 2 Catholic nuns and a man running for Democratic office. Normally you’d never know you were identified as such, but you would lose jobs/wouldn’t be able to travel. However, ACLU filed open government request; after a big fight, determined that 53 people were designated terrorists. The explanation was: the automated software only offered me that choice; there was no option for “extremist” and terrorist seemed close enough.
Public benefits systems: increasingly automated. Programmed hundreds of legal rules incorrectly—denied Medicaid to breast cancer patients based on income allocations not required by state law; denied food stamps based on drug convictions contrary to federal law. System hasn’t gotten better despite high-profile litigation and change of vendors. One girl died when erroneously kicked from system.
Sen & Nussbaum’s capability approach is important. Automated systems impact our core capabilities. Cohen develops this by showing how the systems interfere with play, creativity, space to breathe. Activists: felt watched and didn’t go to meetings or didn’t say what they thought.
Does Cohen overemphasize creativity when more pressing capabilities should be in the foreground? Systems can deprive people of necessities of survival, like health care. Creative activity is hard if you’re starving or if you can’t get a job because you’ve been marked as a terrorist. Social mobility—ability to give credit to talent—is key to creativity, but systems stereotype/pigeonhole people to keep them impoverished. Next steps: sort out how different systems affect different capabilities. Objectification: whether systems fail to treat us as ends in ourselves.
Daniel Solove, GW: Broad theme of Cohen’s work: how to carve out appropriate space for intellectual creativity? One of few scholars to explore privacy and creativity together in their nuances. Copyright and privacy both concern control over information; tension because scholars who argue for limits on copyright are often arguing for more protection for privacy—less control/more control over information. Is there a coherent way to argue for less copyright/more privacy? Cohen’s work establishes the normative foundations for that. A set of ways to allow creativity and the development of the self.
We need to consume in order to create. Also need breathing space to create without someone watching us all the time. Cohen uses Sen & Nussbaum’s concept of flourishing: freedom that transcends negative liberty, includes access to real opportunities. Introduce chance into our controlled, networked world. Copyright: strict control over information can impede our ability to create in the ways we want to create. Privacy: growing surveillance threatens to put us under control that will make us hard to create and flourish in ways outside the norm. Privacy is often treated as a second-class right; hard to give it the status of a fundamental right because fundamental rights tend to be simple and stable; privacy is nuanced, culturally and historically contingent; amorphous. Privacy is a critical right, though, not just to individual flourishing but to society because our own intellectual development depends on the development of others. Stunting creativity of others stunts our creativity.
Surveillance can chill eccentric behavior; it can dull us. Removes interesting eccentricities that are key to great aspects of creativity. Has subtle effects we might not notice: expecting to be under surveillance, we might not even realize we’re holding back.
Self-exposure: not a nirvana of selfhood. Consequences of self-exposure not felt equally for everyone in society: race, gender. Self-exposure is not pure: sites subtly manipulate, shape and control our own expression—site architecture pushes us towards particular ways of being and makes it hard to understand its effects. We experience the consequences; the sites don’t.
Next steps: answer more how one is to weigh privacy and integrate it into the matrix of other values. Cohen criticizes instrumental trading privacy off with other interests. But if it’s not instrumental and not something we should leave people just to choose to give up, then do we risk paternalism in telling them not to self-expose? Law can’t be neutral; will shape architecture. But where do we draw the line? Some creativity can be harmful to other people and society; some self-expression harms the expression of others, e.g., hate speech.
Me: Sickness kept me (relatively) brief.
There’s a tendency in law generally to oppose the real with the culturally constructed, and treat the former as unchangeable and the latter as not very important. In fact culture can be more powerful and constraining to imagining potential change, which is why 1960s Star Trek has recognizable (if bigger) computers and communicators that work a lot like our phones, but racial and gender assumptions that are now quite hard to sympathize with. Cohen challenges us to imagine better: understand culture’s power and make policies that both acknowledge and attempt to work with that power.
Popular legal imagination: privacy is a featureless goo, copyright is crystal-edged property. These are both unworkable and misdescriptive without an account of how people make themselves and each other in light of their environments.
Past week: US v. Jones, majority used property concepts in the guise of trespass to avoid problems of what privacy means. I’m most interested in the Alito concurrence, though, which tries to go beyond property but has a silence at its heart. The concurrence has what Scalia, in a worse mood, might have called a “sweet mystery of life” section; it recites the law about reasonable expectation of privacy, talks in general about expectations, then jumps to “therefore, this was unreasonable.” Illustrates the difficulty courts have thinking about privacy in context.
Previous week: Justice Ginsburg used property concepts to say that the public domain was worthless to the public because unowned; the Bible and Shakespeare are not yours and therefore you lack a First Amendment interest in using them. They are debris, not the culture you breathe in and breathe out, transformed. This is again a failure of understanding how creativity is lived by people.
So, of course, I ask how we can bridge this enormous gap between theory and practice.
Cohen: we come to the law with bodies and histories; that means information and information rights affect us in ways that law often abstracts from. People feel false and unwarranted confidence that we are unchanged by surveillance and copyright law. Yes, we need ultimate answers; the way we’ve gone so far is to assume we can rationalize our way through the hard decisions. We need to start making the hard choices so people can make themselves into critical citizens.
Q: how to deal with the urge to share, experienced as empowering? It’s neither inherently good nor bad, nor do networks inherently inhibit human flourishing as Citron suggested.
Citron: she agrees there are stories of fighting back, like Hollaback against harassment. We need to think about management, and how we do undermine capabilities in ways that could be fixed.
Cohen: we tend to uncritically celebrate freedom and delegate implementation to the technologist; or we get really technocratic and start dictating as if we could fix everything if we had enough info. Those are both faulty ways of thinking: tech is empowering but also dangerous. Think about sensitizing designers to non-neutrality of tech.
Heidi Li Feldman: is privacy any more slippery than any other fundamental right? Maybe it’s more salient because of tech that we don’t understand what we’re trying to protect.
Cohen: autonomy is a crutch; assumes a fixed self that privacy shelters from the world. But the self is in motion; privacy provides breathing space for the process of changing ourselves.
Solove: sees privacy as an umbrella term; has identified 16 different things under the rubric. One of the challenges is that it’s culturally and historically contingent.