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Author: Ann Bartow

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Configuring the Networked Self: Perspectives from China

To start with, I liked the book a lot. It is interesting and engaging and extremely well written. I appreciated Julie Cohen’s fearless and articulate challenges to dominant strains of legal academic liberalism more than I can express. This book will motivate a lot of scholars to think more deeply about our work, as well we should.

I also think that Julie Cohen’s recognition of the freighted disengagement of information privacy activism with information access theory, and information activism with information privacy theory, is brilliantly insightful. The freedom/control binary is something every Internet Law and Intellectual Property Law legal scholar wrestles with in some form (and arguably we are hardly alone in this, subject matter wise). We want the machinery of the law to support good things and restrict bad ones. And we are often optimistic that this can be achieved in particularized contexts if only the applicable government actors can be educated and energized. But we tend not to integrate our practical impulses with overarching theories in ways that allow us to advocate effectively for important general principles while still situating each affected person as an individual end, which is a prime directive of a capabilities focus. Julie Cohen takes us to task for this, and correctly so.

I’ll segue now into a series of “Hey, I’m an individual end too!” related observations about reasons for the lateness of my Symposium contribution. I am currently serving as a 2011-12 Fulbright Scholar at Tongji University in Shanghai, China. Though Tongji University is a top tier national research institution, my Internet access is limited, to put it lightly. It was only by waking at 2 am and logging on to my laptop within the chilly confines of my concrete box apartment for three consecutive nights that I was able to gain access to this book, by downloading it one glacially accruing chapter at a time, from here (http://www.juliecohen.com ), after the Tongji students had retired to their beds and relinquished a bit of bandwidth. Having agreed to participate in this Symposium with some enthusiasm, I had tried to get the Yale University Press to snail mail me a hard copy while I was back in the United States for a couple of weeks in late January, but to no avail. I point that out not to be snarky (well, maybe a little) but to introduce my main critique of the book, which is that you can’t easily theorize your way around or out from under the idiosyncrasies of inconsistent authoritarianism. It is impossible for even a motivated self to rationally mediate what she doesn’t understand and can’t predict, no less control.
To illustrate further by ongoing personal anecdote: Receiving a free hard copy of the book was my preferred path to situational flourishing. Receiving free books generally is one of the best perquisites of academia, and something I hope I will never again take for granted. Buying an authorized hard copy of Configuring the Networked Self here in China, if it is even possible, is likely to be an egregiously expensive proposition. An electronic copy for my Kindle would have set me back $43 plus international delivery fees. While I appreciate and benefited from Julie Cohen’s willingness to make the book available for downloads that do not require dollars, the cost of acquiring the tome from her website was actually pretty steep in terms of time, frustration and lost sleep. I am very grateful to have Internet access at all, but unlike most Chinese people I discuss the matter with, I know what I am missing, in terms of speed and performance.

My understanding is that the Internet here is intentionally slowed, to facilitate monitoring of users. I do not have any expectation of privacy here in China, either on or offline. And I am well aware of the vaunted Great Firewall of China. But I saw no indication of any effort to intentionally block or even encumber access to the online version of the book under discussion. The fact that each chapter had to be downloaded individually was a contributing impediment I cannot blame Chinese Internet for. I must also note that several of my students offered to rise at 2 am and do the downloading for me so that I “could have a good rest,” demonstrating the astounding cultural veneration of professors here. I could not have in good conscience accepted these ridiculously kind offers but the fact that they were sincerely made is also relevant to my capabilities/functioning continuum.
The capabilities approach Julie Cohen embraces requires an understanding that conversions of the exact same commodities (e.g. commoditized music, computer software, Internet access generally, and Julie Cohen’s book specifically) will lead to different levels of functioning for consumers due to variations in the characteristics of the societies in which people live. Societal structures and constraints influence choices that can move capabilities to functionings, or impede this progress.

While the book certainly acknowledges this abstractly, it doesn’t fully account for semi-networked realities such as: mine, which required me to choosing between three nights of adequate sleep, and paying more for an e-book than I did for a brand new, fairly nice bicycle, complete with basket, bell and u-lock; or that of one of my Tongji colleagues, who cannot realistically afford either a Kindle or the 300 to 400 rmb an authorized copy of the book would cost, on a salary of about 4,000 rmb per month, and who has an infant child who already makes sleep a scare commodity. Both my colleague and I are professionally flourishing in our own inimitable ways, but he has to work far harder at it than I do, and both of us currently struggle more to stay informed about our topical areas of interest than almost any American law professor reading this. Yet we are still far more informationally privileged than many people within China. I am not sure how well Configuring the Networked Self really speaks to either our situations or our situatedness. But it was still a great read.

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CCR Symposium: Maybe we can’t make Cyberspace better than meet space, but why allow it to be worse?

Way back when I was in law school, I worked on litigation aimed at protesters who tried to prevent women from entering health facilities where abortions were made available. The judges involved had to balance the protesters’ speech rights against the rights of women to travel where they wanted to go, and as I remember it, convincing courts that is was a civil rights issue was tricky. Danielle Citron needed to make a very strong case for why online actions can compromise civil rights, and as both Frank Pasquale and James Grimmelmann have observed in their symposium posts here, she succeeds brilliantly, but see Orin Kerr’s skepticism.

Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It’s hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is currently no such thing as the “safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution” that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I’m doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

To segue back to reproductive freedom, one of the most trenchant things I’ve seen written about the right to abortion is that most women who oppose it believe there should be three classes of exceptions: 1. The life of the mother; 2. Cases of rape and incest; and 3. Them. Seriously, I’ve listened to people explain that abortion is murder unless the 15 year old asking for one is their daughter, and then it is perfectly justified. In the course of doing legal work for reproductive services providers I’ve seen a number of cases where women who literally stood outside of clinics picketing and shouting at people later asked for abortions for themselves or their children. As you might imagine, reproductive rights clinics fear that these women want to set them up for something bad down the road, such as a lawsuit, or to gain entry to their offices to do violence to the people inside, so these situations receive a fair amount of scrutiny. The egregious level of hypocrisy is stunning.

So it is with some civil libertarians and the Internet. Anonymity and unfettered speech are terrific up until they are the ones being challenged or attacked. See also. For another classic example, go here and note that the ACLU has a locked Wikipedia page because apparently too many editors were writing things the ACLU didn’t like, so the civil rights organization found a way to silence its wikicritics. See also. Wikipedia is far less solicitous of (for example) feminists who are public intellectuals. Pornography proselytizers constantly edit and re-edit their entries, filling them with misinformation. When the feminists request locked pages, they are not only denied, but mocked and criticized just for asking. It isn’t just marginalized groups that are victimized online, but they are disproportionately targeted, and may have fewer options or resources to minimize the harms or fight back.

As to whether the law can effectively address online civil rights violations, Citron is appropriately cautious. The culture of the Internet simply replicates a lot of real space phenomena that plague subordinated groups. Read the e-mail contained in Orin’s post here. Try to think of the last time you saw a virulent expression of anger, online or off, that didn’t feminize or homosexualize the target. Using gendered insults is one of the many ways that gender binaries are culturally enforced everywhere, but the situation worsens dramatically on the Internet, for reasons Citron explains.