Prof. Joel Reidenberg (Fordham Law; director of the Center on Law and Information Policy) starts out a luncheon talk at the Berkman Center’s Law Lab with a provocative opening theme: Transparency challenges the very existence of the Rule of Law. Some hasty/live-blogged notes follow:

As a practical matter, in the cloud era, we’ve lost the practical obscurity of information about all of us.  What used to exist about us, but in private/not-that-accessible form, is now accessible and associate-able with an individual.  We now have transparent citizens, Reidenberg contends.

How does this challenge the rule of law, he wonders?  The data that are included in the TIA and other state databases come from third-parties, outside the warrant process (the third-party data problem).  The state doesn’t have to spend the same amount of time or money to gather a great deal of information about each of us.  Fusion centers are another prime example of this phenomenon, Reidenberg argues.  Fusion centers use data from private sector parties to determine who should be a suspect, as opposed to the historical approaches to determining suspects and then gathering data.  The state does not have to adhere as faithfully to the rule of law in their law enforcement practices.

We have a transparency challenge, says Reidenberg.  Enhanced cryptography can allow people to carry out acts anonymously, he points out; ditto for the Cohen case in New York with Blogger, Juicy Campus, and so forth.  People are hiding behind anonymity to carry out wrong-doing.  As the public perceives more and more surveillance, wrong-doers will use more robust tools to maintain anonymity — making it harder for the state to catch the real bad guys and to protect the rule of law among the citizenry broadly.

There’s a transparency challenge to the rule of law, as well, Reidenberg argues.  The dossier on Justice Scalia that Prof. Reidenberg’s class pulled together.  Secondary use is a major issue when it comes to public data.  Students could easily pull together a dossier on a major figure by using the transparency that government insists on with respect to information about each of us.  A related example: social networking and judges, in the case of a Staten Island-based judge who is friends with those who appear before him.  (Is there a difference between LinkedIn and Facebook?  And/or: do we really want our judges “unplugged” if we tell them they cannot be friends with anyone online?  What about the jury pool and public friendship networks?  Lawyers googling potential jurors outside of voir dire?  Puts me in mind of Prof. Charles Nesson’s American jury seminar this semester at HLS.)

Reidenberg concludes with the “re-instantiation of the Rule of Law.”  We need to focus on a norm of data misuse, he argues.  Knowledge for some purposes is fine; knowledge for other purposes is not OK.  Reidenberg’s argument here points toward seeking to re-engineer practical obscurity into the technical network.  He cites to Helen Nissenbaum’s contextual integrity argument as support for this concept.  (It’s much in the spirit of our work on the Youth Media Policy project, where we’re trying to translate the data about youth online digital media practices into good policy proposals.)

This talk by Reidenberg proves to be extremely provocative to the Law Lab crowd assembled here.  A spirited discussion starts up during the question period.  Just as a few examples of types of push-back: John Clippinger, the law lab’s co-director, says that he agrees with Reidenberg’s analysis but disagrees in terms of what to do about it.  It’s the wrong time to prescribe solutions right now, Clippinger charges, especially with norms in flux as they are right now.  Julie Cohen (Georgetown law prof who is a visiting professor here at HLS this year), who spoke here in the Berkman Center lunch series just last week, was talking about the virtues of “semantic discontinuity” in response to similar privacy concerns.  The communication process leads to a much finer granularity of information as well as new forms of metadata creation and re-assembly, which in turn makes it difficult to operate in proper contexts, argues Urs Gasser (in a quite wonderful series of questions).  Joel’s limited purpose knowledge regime, he argues, is up against a loss of the rule of law (though Clippinger thinks you don’t have to frame it that way; and Cohen pushes on what he means by the “rule of law”; and Clippinger comes back to the private law mesh of contracts-type of regime as preferable).  Professor Harry Lewis (SEAS at Harvard) wants to know how all this will affect the extensive private surveillance regime and whether law should come into the picture to restrict the use of these privately-collected data.  (My question: would you close the third-party data loophole with respect to state access to privately-collected data without 4th Amendment protections?  Yes, said Reidenberg.)

Just based on the last few weeks of lunches around the Berkman Center, I’m coming up in my mind with a dream seminar on these topics.  For starters, I’d have Joel Reidenberg, Julie Cohen, and Jonathan Zitttrain; present each of them with a common set of hard Internet law problems; and ask them to apply their big-picture theories to their resolution.  I suspect we’d get some extremely interesting, and different approaches, to adjusting the law, technology and norms to fit better with the digital age.  I can imagine there are others to invite to the party, too…