Author Archives: Phillips Academy

Susan Rabiner, Thinking Like Your Editor

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As I’ve been gearing up to write a new book, I’ve been thinking about how to do it better this time — continuous improvement and all that.  Some fairly obvious observations are on my mind: stronger argument, a more compelling narrative, less repetitive, probably shorter, and one big-picture idea,* below the rest of the post.

With these thoughts of self-improvement in mind, I’ve turned to the pros to see what they have to say, and found a wonder of a book.  It’s by former Basic Books editorial director-turned-agent, Susan Rabiner (you can follow her on Twitter, as I do; perhaps that will encourage her to Tweet more if we do!).  I heard Ms. Rabiner speak to a group of faculty on my campus; her talk was excellent, as is her book: Thinking Like Your Editor: How to Write Great Serious Non-Fiction — and Get it Published.  Rabiner’s book even got the two thumbs up from Lara Heimert, the editor of Urs’ and my book, Born Digital, and our next project.  (We know from first-hand experience just how demanding, and amazing, Lara is!  Lara does not recommend books lightly; she said that she routinely gives it to her authors.  Hmm…  I wonder why we had to come across it on our own?  Maybe…)

There are lots of reasons why I hugely liked this book, most of which come down to modeling.  Rabiner has written a book that must itself accomplish all the things she’s telling the writer to do, which is no mean feat.  She tells us, for instance, to make argument and narrative work together — and, lo and behold, she does just that in her own text.  It’s a few hundred pages, yet it reads (almost) like a novel; I read it in one sitting.  The text is clean and flows from idea to idea in a way that pulled me along.  All the while, the topic is about thinking up a book project, writing a proposal, what to expect from an agent/editor/marketing department of your publisher, the distinction between a trade book and a university press project, and so forth.  I can see why it is recommended reading for anyone writing serious non-fiction.

Rabiner notes that, when someone is standing in a bookstore with your book in her hands, you have to convince her to devote 5 to 10 hours with you.  This great framing helped me think about my next project.  But it also became clear to me: Rabiner succeeded at her own assignment: 5 hours with her book was well-spent.

(*And at the same time, I have in mind a big-picture thought, encapsulated well by Cody Brown in TechCrunch, about thinking in terms of “apps” as well as “books”, in the traditional sense.  I think this next one will look more like “book” than “app,” but the form factor and interactivity components to any sustained argument strike me as important.  With Born Digital, Urs Gasser and I created four “books”: 1) the traditional bound one/Kindle version, which I count together as one, since I see little difference between the two from a user experience, much as Cody Brown notes in her TechCrunch post; 2) a blog; 3) a wiki; and 4) one comprised of student-generated videos, still a work in progress.  This is a topic for another day, but much on my mind.)

Danner: Taming Multiplicity in a Post-Print Era

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Prof. Richard Danner of Duke Law School is giving a truly inspiring lecture today at Harvard about libraries and legal information.  He has grounded his talk in a lecture by Morris Cohen, a former Harvard Law School library director and professor (later, he had both jobs at Yale as well), about the “multiplicity” of legal sources at the end of the 19th century.  His talk is a fascinating tour of the intellectual history related to legal information and law librarianship, picking up on the words of thinkers from Joseph Story (a legal giant of the 19th century, credited with a key “founding” role for the Harvard Law School) to Robert Berring, Ethan Katsh, James Donovan, and Michael Carroll of the present day.

Danner makes a fresh argument.  In the 1980s, legal information became widely accessible in digital formats for students, faculty, and practitioners.  In the 1990s, the Internet made the same digital sources available broadly to the public.  There’s a new multiplicity of sources, Danner argues, many of which fall outside of the usual vetting and publishing process.  Berring began, as of 2000, to call for a new Blackstone, someone to reconceptualize the structure of legal information.  Danner recalls a report that calls for law librarians to work to provide legal information not just to our students and faculty and practitioners we directly serve, but more broadly, to the public.  Computer scientists and law librarians should work together to solve the problems of getting legal information to these joint.

One of the key jobs of those who think about legal information is to determine the core function (or the source of legitimacy) of law libraries.  The core function is service to a community, not so much collection development, Danner argues.  But at the same time, it’s important to think again, Danner argues, about the nature of the services that law libraries provide.  There’s no reason to be complacent about the role of librarians in the future.  Digital information is somewhat different than printed information, and the differences matter, Danner contends.  These differences can help to understand the job of the law librarian on behalf of the communities they serve.  Librarians provide significant value, but libraries are no longer gateways.

Digital scholarship is by nature collaborative, Danner argues (citing Stanley Katz).  Collaborative and interdisciplinary scholarship is growing in law as it is in other fields.  Law professors might begin to think of law librarians as collaborators, much as they collaborate with fellow law professors.  We are, Danner argues, a service profession, and faculty members think of librarians as service professionals — not so much as collaborators.  Interdisciplinary research might provide a way forward for librarians to function more like collaborators (listed as a co-author) than like service providers (thanked in a footnote).  Law librarians themselves have an area of study, just like Constitutional law or intellectual property are areas of study in the law, Danner argues.  So what is our discipline, Danner wonders?  Information science can provide the theoretical base for the practice of law librarianship, giving rise to a discipline of legal information sciences.

Librarians should not be passive disseminators of legal information.  We should be tool-builders, and to add value to the information that we protect and to which we provide access.  We need to be partners in new fields like empirical legal research.  We need deep, technical proficiency ourselves, and need to use it to build our own role in this new information environment, Danner argues.

And open access is a key part of the recreating of a legal information environment, Danner contends, especially for secondary sources of law.  The primary sources of law, too, are increasingly available through the free access to law movement — and, we hope, through Carl Malamud’s law.gov efforts; Tom Bruce’s LII at Cornell; and so forth.  A commitment to open access should be a responsibility of those of us involved in legal scholarship, Danner argues.  Open access repositories expose scholarship to broader audiences — worldwide audiences — and expanding the communities that we serve.  Through open access, we encourage a freer flow of information beyond the wealthy and privileged cloisters of academia in the US and other rich countries in important ways, and vice-versa.  Berring envisioned a complex information environment, in which users have more support to make their way through it; Danner’s view is that libraries can meet this need.  Librarians need to write more code, to collaborate with those in related fields, to make legal information –both primary and secondary sources — more broadly accessible and useful, to make connections between primary and secondary sources using social media and otherwise, and to do so with a global perspective.  (Bravo!)

Upcoming Lecture: Richard Danner on Open Access (4/29 at 12:30 p.m. at Harvard)

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I’m just thrilled that Richard Danner has agreed to give a major lecture on the Harvard campus about open access on April 29, 2010.  As a rookie law library director, I’ve asked many people in the profession about the leaders in the field, and roads inevitably lead to Danner, among a small handful of others consistently mentioned (in my totally-non-scientific survey).  Danner is the Senior Associate Dean for Information Services and Archibald C. and Frances Fulk Rufty Research Professor Of Law at Duke Law School.  His talk will be entitled, “Taming Multiplicity in the Post-Print Era: Law Librarians, Legal Scholarship, and Access to the Law.”  It will take place on Thursday, April 29th, from 12:30-1:30pm, Lamont Forum Room, in Lamont Library on the Harvard College campus.  RSVP via this link; we expect a good crowd, so please do let us know you’ll be there.   The lecture is sponsored by the Harvard Law School Library, the Office for Scholarly Communication, and the Berkman Center for Internet & Society at Harvard University, our partners in the open access movement on campus.  (Thanks especially to Michelle Pearse, Librarian for Open Access at HLS, for organizing this event.)

Professor Richard Danner has been at the forefront of the open access to legal scholarship movement for many years and has also recently written about the role of academic law librarians in supporting faculty scholarship.  For an article out in this month’s edition of the Journal of Law & Education (April 2010), on the role of the academic law librarian, click here.  See also the Durham Statement, drafted during a meeting in Prof. Danner’s conference room at Duke and now proudly posted on the Berkman Center’s web site; or listen to Prof. Richard Leiter‘s podcast about it, featuring Prof. Danner.

Night at the Cambridge School Committee

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At the Cambridge City Hall, the School Committee is meeting about its budget for the coming year.  There’s not a seat to be had in the Sullivan Chamber.  People are clustered in the antechamber, watching the proceedings on a TV monitor in the hallway.  The School Committee is expected to approve the proposed $137.5 million budget (various relevant links from here).  But it’s a tricky business: the new superintendent has to come up with $3.7 million in cuts to make up for a budget deficit.  And there are issues that are controversial.  The biggest one is a proposed administrative restructuring.

For instance, two representatives of the Cambridge Teachers Association raised concerns about the administrative restructuring proposals built into the budget.  The arguments are familiar: 1) there’s concern that faculty will be giving up decision-making authority to administrators (a message heard often down the street at Harvard in various contexts); 2) that the restructuring process is not sufficiently transparent; 3) that the input requested is not meaningful, too little, and too late; and 4) that current Cambridge Public Schools employees be considered before outsiders for any attractive new mid-level jobs created as part of the restructuring.  School Committee members, too, raised concerns about not knowing all the details about where the cuts will fall exactly as part of the administrative restructuring before voting in favor of the budget overall.  The echoes heard in this process to restructurings elsewhere in academic settings are remarkably clear.

The best part, though, is the public comments from students in the school district.  One after another, students from the Cambridge public schools are encouraging the school committee to invest more in the school system’s environmental programs.  One after another, eighth graders from the King Open school are making serious, compelling arguments to expand a pilot composting program from one school across the system and to increase purchasing of biodegradable trays.  The students earn — and get — huge applause for their efforts.  It will be interesting to see what kind of a lesson the School Committee gives these students in terms of rewarding their activism in a period of big budget deficits.

Google in China

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I’m looking forward to a day of watching the fallout from the Google-China-HK announcement yesterday. I give Google an enormous amount of credit for the approach that they are taking; it’s a worthy effort to meet what they consider their human rights obligations while seeking to engage in the China market, both of which are laudable. I’ll be surprised, though, if the Chinese government doesn’t decide fairly promptly to block the redirects from Google.cn to the uncensored Hong Kong site, though.  This chess-game also demonstrates the importance of (and challenges inherent in) the work of the Global Network Initiative, of which Google is a member, along with Microsoft and Yahoo!

(For more info: See generally the OpenNet Initiative site, blog, research papers, and so forth online.  There’s also a chapter on this issue, written by our colleague Colin Maclay, in the forthcoming OpenNet Initiative book called Access Controlled, due out within the month from MIT Press, as there is in our previous book, Access Denied, available online.  Here’s a piece in which I make a cameo on CNN on Google and China, one of many video-clips on this topic.  And Rebecca MacKinnon’s blog is always informative on these topics.)

Allison Hoover Barlett, The Man Who Loved Books Too Much

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For Christmas, my good friend and mentor John DeVillars gave me a copy of “The Man Who Loved Books Too Much” by Allison Hoover Bartlett.  (There were several messages embedded in the giving of this gift, I’m clear on that much.)  I’ve been eager to read it, but it was fairly far down on the stack of books on my bedside table until last night.  It was worth the wait: a lot of fun and readable in a few nights, if you’re willing to stay up late.  It’s apparently non-fiction, but it reads almost like a mystery novel — about Bibliomania.

Bartlett tells the story of John Charles Gilkey, who steals a great many rare books, and the rare book dealer (Ken Sanders) who helps to track him down and warn his fellow dealers of Gilkey’s misdeeds.  Bartlett clearly spent an enormous amount of time reading about book collectors, dealers, and thieves and talked to a good many of them, too.  She tells the story of Gilkey, Sanders et al. in a manner that’s at once serious and reflective, and with a welcome sense of humor throughout.  Bartlett gets deeply into the topic herself through the research and writing process, which comes through clearly in the text in an appealing, human way.  She refers in the notes on p. 263 to a state of “research rapture,” which resonated for me.  For anyone who loves books and bookstores (or libraries, for that matter, which make a cameo appearance near the end, especially), it’s an interesting, fun (and quick) read.

For those for whom the book is not enough on this topic: I also enjoyed the Library Thing interview with the author.

Joel Reidenberg: Transparent Citizens and the Rule of Law

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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…

Julie Cohen: Configuring the Networked Self

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At the Berkman Center, we are hearing a preview of key elements of Prof. Julie Cohen‘s forthcoming book, Configuring the Networked Self.   Some hasty live-blog notes follow:

Prof. Cohen tells us that there are two disconnects that she starts with: 1) there are lots of invocations of “freedom” being floated around, but many of the results in the political and technical processes seem antithetical to the interests of the communities involved; and, 2) while the free culture debate is all about openness, it’s impossible (or at least difficult) to imagine how privacy claims may be contemplated in the context of all this openness.

What’s puzzling, to Cohen, about these disconnects that has led her to major substantive and methodological claims: we make these laws and policies about freedom within the frame of liberal political theory, invoking terms like autonomy and freedom and presumptions like rational choice as the dominant terms of the discourse.  We ought to be focusing instead on the experienced geography of the networked society, where people are living in cultures, living in ways that are mediated by technologies.  We don’t have very good tools to ask and answer those questions.  We’re led to start with the presumption that individuals are autonomous and separate from culture.  It’s difficult to say things about how more or less privacy will result in meaningful, significant consequences for how we experience our culture and how political discourse works from there.

On to the methodological question: lots of people are working on these questions in related fields, and we in legal scholarship often don’t pay enough attention to what they are learning (say, in cultural theory, STS, other fields described by legal scholars in pejorative terms of “post-modernist” and otherwise).  We need to understand what Cohen calls “situated embodied users” and how they experience information technologies in order to inform law and policy in this field better.  Cohen’s “normative prior”: We should promote law and policy that promote human flourishing (network neutrality, access to knowledge, access to culture as precursors for participation in public life).  But Cohen also tells us that she parts company with those who expound this theory where they seek to embed it in liberal political theory.  We should reconcile — or live with — tensions in legal and policy problems by looking to these “post-modern” fields and ask what they can tell us.  We should ask what kinds of guarantees the law ought to provide.

Where does this process lead us?  Think about Access to Knowledge, Cohen says: it’s nice, but it doesn’t get you as far as you need for human flourishing.  It doesn’t guarantee you rights of re-use in creative materials or rights of privacy, for instance.  There are further structural preconditions for human flourishing that we need to ensure.  Two in particular: 1) operational transparency: it’s not enough to know what is being collected about you, you need to know how it’s going to be used; and 2) semantic discontinuity: a vital structural element of the networked information economy: e.g., copyright, you need incompleteness in the law and policy regime that affords room for play.  In privacy, you need space left over for identity play, for engagement in unpredictable activity.  In architecture, seamless interoperability is all to the good in some ways, but not good for privacy, for instance.  Data about you would therefore move around and around and around without your knowing about it.  Human beings benefit, Cohen argues, from structural discontinuity.

This is going to be a fascinating and important book.  And I’m eager to think through how Cohen’s claims relate to JZ’s in Future of the Internet once I’ve read Cohen’s new work.

Reader Privacy Event at UNC-Chapel Hill

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Anne Klinefelter, the beloved law library director at UNC-Chapel Hill (you should hear her dean introduce her; really!), is hosting a Data Privacy Day event on reader privacy.  She makes the case in her opening panel remarks that, if we wish to translate library practices with respect to privacy into a digital world, we need to figure out how to translate not just law but also ethics.  Anne argues that the law needs updating to keep up with new research practices of today’s library users, especially as we shift from a world (primarily) of checking out books to a world (primarily) of accessing databases.  Her analysis of the 48 state laws with respect to user data privacy shows that the statutes vary in substance, in coverage, and in enforcement.  Anne’s closing point is a great one: if we’re in the business of translating these rules of library protection of user data, we need to bring the ethical code and norms along as well.

Jane Horvath (Google) and Andrew McDiarmid (CDT) take up the Google Books Search Settlement and its privacy implications.  Jane emphasized the protections for user privacy built into book search.  She also emphasized ECPA and the need to update it to protect reader privacy.  Google, she says, is “calling for ECPA reform.  It really is necessary now.”

Andrew described, diplomatically and clearly, the privacy concerns that CDT has with respect to the Google Books Search Settlement (which CDT thinks should be approved; EFF, the Samuelson Clinic, and the ACLU of Northern California have similar concerns, but oppose approval of the settlement).  The critiques that Andrew described are not limited to Google’s activities, he noted; Amazon and others need to address the same issues.  Andrew worries about the potential development of (too?) rich user profiles that may be the target of information requests for law enforcement and civil litigants.  Rather than regulate Google as a library, Andrew argues, we should focus on the kinds of safeguards that CDT would like to see apply.  The best recent restatement of Fair Information Practices is by the DHS, says Andrew.  Eight principles should apply: Transparency, individual participation (including the right to correct it), purpose specification, minimization, use limitation,  data quality and integrity, security, accountability and auditing.  CDT would like to see Google commit to specific protections in alignment with these eight principles.

Sahara Byrne: Parents, Kids and Online Safety

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Prof. Sahara Byrne, of the communications department at Cornell, is the Berkman Center‘s lunch series speaker today.  Prof. Byrne studies responses to Internet safety techniques.  She’s interested in the “recipes for disaster,” such as when parents love a given safety technique and kids hate it.  She’s a believer in psychological reactance theory: that when kids really don’t like something, they’re going to work hard to get around it.

Her methods: an extensive Internet survey of 456 parents, with matched child pairs (10 – 17 years old).  Asked parents how much they would support a particular tool and kids how they would feel if their parent adopted this strategy.  Parents were asked more questions than the kids.

This is a fascinating and important study.  Her data are brand new and she’s still working through them and their implications.  The outcome of her study is especially of interest to some of us here at the Berkman Center because Prof. Byrne developed her survey in large part based on the public meeting’s output from the Internet Safety Technical Task Force and the Task Force’s final report.

A few of her findings from the matched pairs:

– Surveillance of kids’ online behavior by the technology/service provider is popular by parents and particularly disliked by kids.

– User-child empowerment strategies were popular with both parents and kids.

– Also, equally popular among parents and kids: when kids who were bad or mean were suspended from school.

Some of the important predictors of whether there will be disagreement or not with respect to a given matched pair:

– Parenting style can predict a great deal of agreement/disagreement between parents and kids.  Households with good communications between parents and kids are likely to have the greatest level of agreement.  Authoritative styles of parents — where there’s a mix of good communications but also clear parenting decision-making — there’s still likely to be a challenge for parents in terms of deploying some of these technologies to help kids stay safe.

– Values and religion were important variables.

– Boys tend to disagree with their parents more than girls.

If one buys the psychological reactance theory, the types of approaches that are most likely to work:

– Empowering children to protect themselves

– Giving the government and industry some responsibility for protecting kids in terms of protecting them from harmful information

What’s most risky in terms of strategies that may lead to the highest degree of disagreement:

– Co-viewing of information

– Parental access to what kids were looking at (tracking)

Parents are not that aware of what their kids are actually do (Prof. Byrne showed statistically relevant differences in several cases).

During the discussion phase, we learned about a promising cyber-safety approach underway at the Boston Public Schools, with funding from Microsoft.  It’s a student-run program called “Cyber Safety Heroes” (the previous name ran into an IP dispute with a well-known content company…).  I look forward to following it closely.

And stay tuned for the final, published version of this very helpful research!