Joel Reidenberg: Transparent Citizens and the Rule of Law

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

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.