Category Archives: Harvard Law School

Laptop and Filtering Policies for Classrooms

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I had the pleasure of teaching in the Research Symposium for Spanish and Latin American Academics, held at Harvard University this August.  As part of a three-hour session on learning with technologies, I assigned an exercise in which groups of teachers (mostly at the university level; a few teaching younger students) had to work together to come up with policies on laptops in the classroom. In honor of the school-year that is starting up, here are their respective proposals, live-blogged (I’m just presenting what they came up with, as faithfully as I can, and not endorsing any of these views in particular, just to be clear):

– Group 1: Laptops should always be permitted.  Elementary and high schools should have a policy where teachers control the content that students can see.  A firewall should be established to protect the information environment such that some content would be filtered out at some levels of learning.  In universities, the environment should be less controlled but still filtered for sexual content, games, violence, and other sensitive material.  A survey tool nationwide should be used to assess whether this approach is working for the students in support of their learning.  (The spokesperson declared that there was disagreement as to this policy in the group, but that they decided to present a consolidated front.)  Other group members reacted to this proposal with concerns about who will watch the watchers (i.e., who will keep an eye on the people who choose what to filter out of these school environments); how to deal with sexting; how well suited young kids are to use laptops appropriately; and so forth.

– Group 2: It should be the right of the professor to decide whether or not to allow laptops in class.  It depends a lot on the topic one teaches, the level of the students, the extent to which the campus is wired, and the penetration of laptops for students.  There was a debate within this group: what happens when some teachers say laptops should be banned across the board?  Then the dean and the faculty of a given school should be able to take a vote to ban laptops.

– Group 3: This group agreed that, for an undergraduate college, where there is wifi available across campus, it should be up to the teacher in each classroom to decide.  But there should be a student veto: if a single student objects, a teacher should consider whether to ban laptops to avoid the negative externalities of laptop use on other students.  Secondarily, teachers can expel students for using laptops in a disruptive way.  There should also be an informal users’ group which offers information to students and faculty about the costs and benefits of laptops in the classroom.  This group reported that they were animated by a trust in students’ ability to use technology in a responsible way and wish to emphasize education of students along the way.

– Group 4: This group said that it should be up to individual teachers whether to allow laptops or not.  It depends on a complex series of variables.  It’s too hard to have any other single policy that will work for all settings — in marketing and mathematics courses, the issues and pedagogies are very different from one another.  The school should underscore that it is important to consider the needs of students and how best to use technology in the classroom.

– Group 5: This group decided unanimously not to have a policy.  They decided instead that there should be 3 principles established: 1) freedom of thought: students should be free to do what they like with their minds; 2) freedom of speech and teaching: institutions should trust teachers to make good decisions about teaching, including laptop use; and, 3) the principle of commitment to a good learning environment: professors and students can agree on rules at the beginning of a semester.  The dynamics of the class are very important and should be the focus of the teacher, who should think about how much time is devoted to any given task or mode.

Guest Blog Post: Lawrence Lessig

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John,

As you know, my blog is in hibernation. Would you mind posting the following response to Andy Orlowski’s latest for the record?

I hadn’t thought any response would be necessary, but the ordinarily sensible (even if I disagree with its politics) Capitol Confidential seems to have been misled by Orlowski’s piece. Perhaps there are others. So, …

FOR THE RECORD, II.

A reader of Andrew Orlowski’s article published at The Register might be forgiven for taking from that piece the following scandalous story:

That the Berkman Center and a “for profit” entity on whose board I sit, iCommons, “registered in London,” has taken a large amount of money from a criminal organization — gamblers, or at least, people who set up an online poker site; that with those resources, Berkman tempted me to Harvard (as Orlowski puts it, “half of Berkman’s first-year budget of $5.4m went on procuring and supporting Lessig”). Berkman then used that money to help start Creative Commons. And that while we can’t really know what other influence these illegal gifts have procured, the suggestion is they certainly must have done something. It has at least driven Lessig to serve on the board of an entity that promotes poker — the GPSTS. Beyond that, we can’t say, but there must be more. Why else would the money have been given? “Perhaps it’s naive,” as Orlowski sonorously intoned, “to expect academics to uphold the values they preach.” So where else then is Lessig acting against the values he preaches?

Something close to this reading was what Capitol Confidential got from Orlowski’s piece. Here’s CC’s account:

As described by Andrew Orlowski at The Register recently, Professor Lessig (a professor of ethics, no less!) seems to have made a killing advocating on behalf of the gambling industry. Orlowski’s remarkably detailed reporting shows how Lessig’s for-profit iCommons attracted more than a million dollars in contributions from “newly-formed and secretive off-shore trusts” about three years ago, shortly after a new U.S. law took effect that curtailed online gambling. As for current funders of Lessig’s group, that’s anyone’s guess since Lessig’s London-based nonprofit Creative Commons does not disclose a list of its donors.

So for the record:

First, the Berkman Center has never taken any money from either of the two entities Orlowski identified. Zero.

Second, even if it had, there is no chance that money could have been used to recruit me to the Berkman Center. I came to the Berkman Center in 1997 — long before DeLeon and Dikshit made their money. I returned to Harvard last year, but to the Edmond J. Safra Foundation Center for Ethics, not to the Berkman Center.

Third, even if the money had been given to recruit me retrospectively (the way extending copyrights is said to promote creativity) and even if it had come from the allegedly tainted sources, Berkman did not “procure and support” me by spending $2.7m. Berkman used that money to fund an endowed chair — the Berkman Professorship — a chair which I held for a year or so while at Harvard, a chair which Zittrain held after that till he went to Oxford, and a chair that Yochai Benkler now holds. An endowed chair in law schools simply refers to the bucket from which a salary is paid. My salary (then and now) is obviously an order of magnitude lower than $2.7m, and was not affected in the slightest by my holding that chair.

Fourth, Berkman did not fund the launch of Creative Commons. Some of its founders were associated with Berkman when CC launched, and an initial meeting was held at Berkman. But that was the only “help” CC received from Berkman.

Fifth, Creative Commons certainly does publish the list of its contributors.

Sixth, I am not currently, nor have I ever been a “board member” of GPSTS. I don’t even know whether GPSTS has board members, but the website does list me as an “adviser.” I am an unpaid adviser to the founder of that entity, Charlie Nesson, in this and in any other area that he would like advice on. I believe the total amount of “advice” I have offered Charlie about GPSTS is that it find a better name.

Seventh, and most critically, iCommons.org is not a “for profit” entity. It is a not-for-profit entity. And it is not simply “registered in London.” It is a British Charity. Its first Chairman was Japanese. Its second Chairman was Brazilian. Its first Executive Director was British. Its second was South African. The majority of the board (I believe, but have not checked) has always been non-American. It is not subject to the jurisdiction of US law, except to the extent that it engages in activities here in the US. Since being launched as a UK charity, iCommons has never held any event in the United States.

I say all that to throw into relief the central confusion at the core of Orlowski’s essay. The nub of his charge against me is that I should have engineered the return of contributions to the iCommons charity because one of the two entities that contributed to it has pled guilty to violating US law.

Ok, but remember: iCommons is a UK entity. Whether or not Dikshit violated US law, neither he nor the founders of IETSI have been charged with violating UK law. I know Orlowski has US envy, but I should think THE REGISTER would recognize that the UK is neither a state nor a colony of the United States. And so why an alleged violation of US law should obligate a UK charity to return a charitable contribution is completely beyond me. If BP had advertised on The Register’s site, would The Register be obligated to return the advertising fee?

The most troubling bit of Orlowski’s piece, however, was the part he didn’t include. He ends his piece with the sanctimonious “[p]erhaps it’s naive to expect academics to uphold the values they preach.”

One might expect then that if he was charging me with not upholding the values I preach, he would at least mention what those values are. In my email to him, I had referred him to my “disclosure which states my “values.” Orlowski omitted that link in his essay. As that disclosure makes clear, my “values” are that I will not “promote as policy” positions for people who pay me, or who give a significant amount to a non-profit for which I have fundraising obligations.

Have I lived up to those values?

First, neither IETSI nor Dikshit ever paid me anything. Zero.

But second, the gift to iCommons plainly would trigger the obligation that I not “promote as policy a position” in the commercial interests of IETSI or Dikshit. That’s because I had a fundraising obligation to iCommons, and IETSI and Dikshit helped relieve that obligation through their gifts.

Orlowski nonetheless suggests that I violated this policy. But as I advised him by email (another bit of my email that he omitted from his essay), I had explicitly told the founders of IETSI and Mr. Dikshit before they gave their gifts that their funding iCommons would mean that I would not become involved in any policy debate that would advance their commercial interests. And indeed, I have not. I have never testified publicly, or promoted privately, any change in policy with respect to online gambling or poker. Instead, my behavior with respect to both of these contributors is precisely consistent with “the values [I] preach.”

Orlowski knew this all this, yet he wrote an essay that states precisely the opposite.

I don’t know what explains his fabrication. It may simply be the product of an extraordinarily sloppy mind. But the pattern here may suggest something more.

This piece is just the latest in a series of sloppiness or slander by Orlowski. The first was published almost a decade ago. In that piece, Orlowski apparently fabricated a quote he had attributed to my assistant. When she came to me in tears, I asked him to correct it. He refused, but invited me to dinner instead. I told him I was not interested in dinner with him; I simply wanted him to correct his error. He didn’t. Three years ago, he reported on a speech I gave at CISAC. That piece too was filled with apparently fabricated quotes, attributed to me. When I posted a blog entry that included snippets from a recording of the speech, demonstrating the fabrications, The Register cleaned up the quotes, but defended the piece by claiming — you can’t make this up — that Orlowski had invited me to dinner the night before the talk.

The good news about this latest is that at least this slander came with no invitation to dinner. For that I am grateful.

(In case there’s any confusion: The foregoing post was written by Lawrence Lessig. -JP)

Some Basic Facts about the Berkman Center

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A new group of (utterly wonderful) interns has arrived at the Berkman Center, asking lots of questions about what the place is about.  I met with a big group of them, working on a few projects I’m involved with, this afternoon.  There’s also a reporter who has been working on a story about the Center, who has asked a lot of basic questions about what we do and how we fund our work.  I thought I’d set out some basic facts about the Berkman Center here in a blog post, in case anyone’s interested.

The Berkman Center for Internet & Society was founded in the 1997-1998 academic year at Harvard Law School by Prof. Charles Nesson and co-founder Prof. Jonathan Zittrain.  Their vision was complemented by, and supported by, a generous gift from the Berkman family.  This gift provided both funding for a chair at Harvard Law School for a professor (which has been held by Lawrence Lessig, Jonathan Zittrain, and presently by Yochai Benkler) and for the seed funding for the Berkman Center for Internet & Society at Harvard Law School.  The Center had a few students back then, now-famous Internet scholar Wendy Seltzer and lawyer Alex Macgillivray.  Wendy refers often to the early days of the Berkman Center as “smart people in a hallway.”  It was not glamorous.  It was a hallway in Pound Hall at HLS where most of us students (I was one, in the late nineties as well) toiled at workstations on JZ’s and Charlie’s inventive projects.  In the early days, the Center’s budget was up to and occasionally a bit over $1 million per year.  It had a small professional staff and a deeply devoted, and growing, group of students engaged in it.  That was the era when I fell in love with the subject and the place.  It felt serious, important, and engaged in an exploding topic.

The Center has grown since then in many respects, but it retains much of its original flavor — much of its original start-up feel.  We are, twelve or thirteen years later, no longer in a hallway, but now in slightly larger digs, the second floor of a yellow, wood-frame house on the north edge of the HLS campus.  It’s about 2,300 square feet, with some offices housing four, five, or six people at a time.  During intern season, there are often a dozen or more students camped in the conference room and/or the kitchen.  We still feed the crew a lot of pizza and sandwiches: every Tuesday, for our lunch series, at a minimum, and often more frequently than that when we have other guests.  That’s part of the charm: students, staff, fellows, and faculty all come to the Center for the ideas, the camaraderie, the hard work, and occasionally the refreshments.  Myles Berkman, who has been our biggest supporter, described his vision for the Center as a “water-cooler” around which interested students and researchers might gather to work on the most important issues of our times.  We’ve taken that charge seriously.

The growth of the Center has changed a few things.  There are many more paid staff, which is terrific; our reach is increased as a result.  It was once a few staff; it is today more like 30.  The fellows program — in many respects the heart and soul of the institution — has grown from a few to as many as 50 in the newly-announced class for the coming year.  The faculty has grown.  Our clinic has grown in size and sophistication, and is led by Prof. Phil Malone and his extraordinary group of lawyers and teachers.  As many as 150 students grace us with their presence and involvement each year.  Our reach, today, is more international than ever, a charge led by our quite brilliant and wonderful executive director, Urs Gasser, who was formerly a law professor at the University of St. Gallen in Switzerland.

Our funding, too, has grown and diversified.  Initially, it was pretty much just the Berkman family.  Recently, the Center’s budget has grown to between $4 million and $5 million per year.  The funders come from a broad range, including individuals, foundations, governments, and corporations.  We disclose all donors on a web page which the staff keeps up-to-date.  We don’t take any sponsored research.  But if we allocate an unrestricted gift from a corporation to our work on a given project or event, then we disclose this gift as associated with a project (see the ISTTF page, or our Interop work, or our Digital Youth work, each of which have benefited from funds from various supporters).

Some things have not changed as the Center has grown, which is deeply important.  The Center is still a place where people who work there are deeply devoted to a common mission — a mission that has not changed since our inception, dreamed up by JZ and Charlie and just as compelling today as it was when the Center was founded.  It’s a place where understanding the truth is the primary object, whether through teaching, research, or exploration of cyberspace.  We work hard and enjoy one another’s company, challenging ideas, and devotion to our shared inquiries.  It is a serious, fun, compelling place to work, and I’m grateful every day that I’m associated with it.

Interns, I hope you have a great summer — and may you have as hard a time leaving it as I have.

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.

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!

Research Confidential and Surveying Bloggers

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In our research methods seminar this evening at the Berkman Center, we got into a spirited conversation about the challenges of surveying bloggers.  In this seminar, we’ve been working primarily from a text called Research Confidential, edited by Eszter Hargittai (who happens to be my co-teacher in this experimental class, taught concurrently, and by video-conference, between Northwestern and Harvard). The book is a great jumping-off point for conversations about problems in research methods.

The two chapters we’ve read for this week were both excellent: Gina Walejko’s “Online Survey: Instant Publication, Instant Mistake, All of the Above” and Dmitri Williams and Li Xiong’s “Herding Cats Online: Real Studies of Virtual Communities.”  Both chapters are compelling (as are the others that we’ve read for this course).  They tell useful stories about specific research projects that the authors conducted related to populations active online.  In support of our discussion about surveys in class, these two chapters tee up many of the issues that we ought to have raised in this conversation.  Gina also came to class to discuss her chapter with us, which was amazing.  (Come to think of it, I would also have liked to have met the two authors of the second chapter; they wrote some truly funny lines into the otherwise very serious text.)

In a previous class, we started with Eszter’s Introductory chapter, “Doing Empirical Social Science Research,” as well as Christian Sandvig’s “How Technical is Technology Research? Acquiring and Deploying Technical Knowledge in Social Research Projects.”  These two chapters were a terrific way to start the course; I’d recommend the pairing of the two as a possible starting point for getting into the book, even though they’re not presented in that order (with no disrespect meant for those who chose the chapter order in the book itself!).

While many of Research Confidential’s chapters bear on the special problems prompted by use of the Internet and the special opportunities that Internet-related methods present, the book strikes me as very useful read for anyone conducting research in today’s world.  I strongly recommend it.  The mode of the book renders the text very accessible and readable: unlike most methods textbooks, this book is a series of narratives by young researchers about their experiences in approaching research problems, some of them related to the Internet and others not so technical in nature.  As a researcher, I learned a great deal; as a reader, I thoroughly enjoyed the book’s stories.