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Category: Blogging

8

Ben Stein and the ABA’s Facepalm

The American Bar Association is kicking off its 2012 tech show with an address by… Ben Stein. Yes, who better to celebrate the march of technological progress and innovation than a leading defender of intelligent design? Who better to celebrate rigorous intellectual discourse than a man who misquotes Darwin and fakes speeches to college audiences?

This is a pretty embarrassing misstep. The ABA is irrelevant in the IP / tech world, and this facepalm is a nice microcosm of why. (Wait, what is the ABA relevant to? Now that’s a hard question.) We geeks don’t like it when you dis science. Thanks anyway, ABA – maybe you should stick to having your judicial recommendations ignored.

Hat tip: health law expert Margo Kaplan.

Update: I found the perfect keynote speaker for ABA’s 2013 TechShow: Marshall Hall!

Cross-posted at Info/Law.

9

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why: Read More

5

Anthropological Introductions

I would like to thank Danielle Citron for the invitation to pen some thoughts here on Concurring Opinions, and letting an anthropologist enter this legal arena. For my first post, I thought I would ease in slowly and give a taste of my work on hackers, geeks, and digital activism along with some of the themes and issues I will likely explore over the month.

Being there are not a whole lot of anthropologists of my ilk ( as I like to joke, I am an “arm chair anthropologist” who sits in front of her computer to study the high tech digerati of the west), I often get asked how or why I came to the study hackers, many people assuming that I had some hacker relative in my life or was myself a budding young hacker, both of which were not the case. Fitting to this blog, I got to hackers via the law. In 1997, when my friend—an avid free software developer—found out I had a keen but personal interest in patents and access to medicine, he sat me down to tell be about this legal concept called the “copyleft.” It was one of those moments that I still remember so vividly as I was nothing but floored, astonished, excited, and puzzled, especially when I learned of the full depth and extent of  this legal alternative that had been dreamed up, not by lawyers, but by geeks and hackers.

Over the ensuing year, which was my first year at graduate school, I delved so often and deeply into the world of free software, it was clear that I had to change topics or else I ran the risk of never finishing my degree. Alhough I routinely encountered skepticism—and still do—I felt like I struck anthropological gold: there was too much to explore, prod, and examine so at the time, I took a one hundred and eighty degree u-turn and have never returned.

My work on free software spans various topics, from the prevalence of humor among hackers to the multi-year legal battles over the right to write and release source code in the face of new regulations such as the Digital Millenium Copyright Act. Most broadly, I use free software to examine the cultural life of liberalism. By liberalism, I do not mean what may first come to mind: a political party that in Europe is usually associated with politicians who champion free market solutions, or in the United States, a near synonym for the Democratic party; nor is it just an identity that follows from being a proud, card-carrying member of the ACLU (American Civil Liberties Union) or the Electronic Frontier Foundation, although these certainly can be markers.  I take liberalism to embrace historical and present day moral and political commitments and sensibilities that should be familiar to most readers of this blog: protecting property and civil liberties, promoting individual autonomy and tolerance, securing a free press, ruling through limited government and universal law, and preserving a commitment to equal opportunity and meritocracy. These principles, which vary over time and place, are realized institutionally and culturally in various locations at different times, perhaps the most famous of these being the institutions of higher education, market policies set by transnational institutions, and the press, but are also at play on the Internet and with computer hackers, such as with those who develop free software, who have an accentuated commitment to free speech and make free speech claims to question what many see as not only the use but abuse of copyrights and patents. In one post I hope to examine and explore what it might mean to study liberalism from the vantage point of culture and hackers.

As I moved forward with my work on hackers it become increasingly clear that there was not only so much about this world that lay untouched and untapped (I think we know more about Papua New Guinea than hackers) but there are also many misperceptions and miconceptions shrouding our understanding of hackers due to existing literature and fantastical media representations. Part of the problem is that differences are often whitewashed away in favor of coming up with some simple and sanitized story about some unitary group of hackers. It is true that hackers can be grasped by their similarities: they tend to value a set of liberal principles: freedom, privacy, and access; they tend to adore computers—the glue that binds them together; they are trained in specialized and esoteric technical arts, primarily programming, system administration, security research, and hardware hacking; some gain unauthorized access to technologies, though the degree of illegality greatly varies; foremost, hacking, in its different forms and dimensions, embody an aesthetic where craft and craftiness tightly converge and thus tend to value playfulness, pranking,  and cleverness and will often perform their wit through source code or humor or even both: funny code.

Hackers, however, evince considerable diversity and are notoriously sectarian, constantly debating the meaning of the words hack, hacker, and hacking. I myself have been caught in the line of fire when hackers launch these accusations (“No, Biella, hackers are ‘breakers,’ not those who make ‘cool LED throwies in a hackerspace;” ‘No Biella, please get there is a distinction between ‘hackers and crackers’..”), so I will also be writing a post on this topic.

Most of my work on free software is completed, tucked and hidden away in academic journal articles read by perhaps a dozen or less people every few years, if even that many, and forthcoming in full-bodied form in a Creative Commons licensed book with Princeton University Press in the fall of 2012. But I am have become much more known for that which I once thought of as my niche, boutique side project: Anonymous. And it was so because for a a long period of time it existed as an esoteric, marginal sort of phenomenon: quite interesting, especially the activist manifestations (as Anonymous can be used for pure trolling) but over the last year exploded proliferated, and mushroomed in ways that make it very hard to pin down. In contrast to researching free software, which was relatively easy, working on Anonymous has tested my resolve so many times; they are truly difficult to study, for all sorts of reasons, some of which I will explore in a couple of posts I plan on dedicating to them as well.

 

 

 

42

Harassment, male privilege, and jokes that women just don’t get

A familiar theme comes up frequently in internet discussions: Women who complain about online harassment are just missing the joke.

As an initial descriptive matter, it’s pretty clear that women and men are often treated differently in online discussion. (Quick, name a case in which someone was harassed online. Was the person you thought about a woman? I thought so.)

A few months ago, John Scalzi noted that:

In my experience, talking to women bloggers and writers, they are quite likely to get abusive comments and e-mail, and receive more of it not only than what I get personally (which isn’t difficult) but more than what men bloggers and writers typically get. I think bloggers who focus on certain subjects (politics, sexuality, etc) will get more abusive responses than ones who write primarily on other topics, but even in those fields, women seem more of a target for abusive people than the men are. And even women writing on non-controversial topics get smacked with this crap. I know knitting bloggers who have some amazingly hateful comments directed at them. They’re blogging about knitting, for Christ’s sake. . .

I can contrast this with how people approach me on similar topics. When I post photos of processed cheese, I don’t get abused about how bad it is and how bad I am for posting about it. People don’t abuse me over my weight, even when I talk explicitly about it. I go away from my family for weeks at a time and never get crap about what a bad father that makes me, even though I have always been the stay-at-home parent. Now, it’s true in every case that if I did get crap, I would deal with it harshly, either by going after the commenter or by simply malleting their jackassery into oblivion. But the point is I don’t have to. I’m a man and I largely get a pass on weight, on parenting and (apparently) on exhibition and ingestion of processed cheese products. Or at the very least if someone thinks I’m a bad person for any of these, they keep it to themselves. They do the same for any number of other topics they might feel free to lecture or abuse women over.

It’s this sort of thing that reminds me that the Internet is not the same experience for me as it is for some of my women friends. (Emphasis added.)

That bears repeating: The Internet is not the same experience for men as it is for women. (No wonder women are numerically underrepresented in prominent internet discussion spaces.)

Why is the internet a different place for men than for women? There are doubtless a number of contributing causes, but one of the major factors is that the internet is largely a male-constructed discursive space, and internet discussion norms often build on assumptions of male privilege. Read More

0

Another Exciting New Blog: Just Enrichment

It is exciting to welcome Just Enrichment to the blogosphere.  A group of graduating Harvard Law students started the blog to “continue the discussions [they]‘ve had over bagels and coffee” once they are no longer “sitting at the same kitchen table.”  Recent posts include “Anti-Drug Drug Users, Anti-Gay Gay People, and Anti-Gun Gun Owners: Hypocrisy and the Party System,” “The Birth Certificate, Why Now?,” and “Rethink Music Conference, Day 2: It All Comes Back to Statutory Damage.”

0

Accreditation Sunlight

The Conglomerate Masters Forum on Legal Education is underway, and worth checking out.

In my post, I recommend that the ABA accreditation process should model itself after the SEC and move toward an exclusively sunlight model. David Zaring, perhaps surprisingly, favors regulation, though he admits that it makes legal academia “cozy.” Christine Hurt comes out against accreditation-driven tenure.  Other folks are posting shortly, so head over to the ‘Glom and join the discussion.

5

Information commons and global democratic capabilities

Most chapters in the Access to Knowledge in the age of intellectual property book have been initially drafted several years ago.  As we are holding from today a 3-days on-line symposium to celebrate the publication of the book, the ideas covered in the book prove to be not just resilient, but at the heart of a difficult but exciting democratic renaissance.

As many, I joined the Access to Knowledge (A2K) movement from a specific perspective. For me, it was advocacy for commons-based innovation and culture, and struggles against legal and policy mechanisms that threaten their potential. Underlying this involvement was a wider perspective: the idea that information and communication technology (ICT) are at the root of new human capabilities, and that the a proper legal, policy and cultural environment will decide how well we seize this opportunity. As I write these lines, the link between ICT, freedom of expression, democratic empowerment and human development is hot news. And with these news come new questions and challenges.

When my book Cause commune: l’information entre bien commun et propriété was published, I did not invest much energy to get it translated in English, as the aim of the book was to reformulate American knowledge commons-thinking for European, emerging and developing country readers. But one day, I received an email from a Tunisian translator, Abdelouadoud El Omrani, who offered to produce a voluntary translation of the book in Arabic. It ended being published as a paper book by the Qatari National Centre for Culture, Heritage and the Arts, disseminated on the Internet under a Creative Commons license. Let’s be frank, I am not sure that many people read this book in Tunisia (where many likely readers read also French) or in Egypt. That’s partly because the distribution of books (and even ideas) is still very segmented in the Arabic world, and partly because potential readers had more urgent things to do. However, the publication brought me to visit a few Arabic-speaking countries, and to meet Internet users, knowledge sharing advocates, lawyers and writers from the Arab world. I witnessed their courage, their inventive use of poetry and fiction (when they explained it to me, as I don’t understand any Arabic), whether in face of authoritarian regimes for instance in Tunisia or Egypt or in face of the totalitarian imposition of religious prescriptions on individuals, for instance in Saudi Arabia1.

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0

Online Symposium: The Fragmentation of the U.S. Health Care System: Causes and Solutions, Next Week

I am pleased to announce that in a collaboration between the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics, and Concurring Opinions, Frank Pasquale and I are organizing an online symposium on this blog (beginning on Monday) on the new book The Fragmentation of U.S. Health Care System: Causes and Solutions.  This book, which grew out of a conference the Petrie-Flom center hosted in 2008 was edited by Einer Elhauge and featurs a stellar list of contributors from law, economics, medicine, management, and other disciplines.

Here is a description of the symposium on the book and the list of participants:

Why is our health care system so fragmented in the care it gives patients? Why is there little coordination amongst the many doctors who treat individual patients, who often even lack access to a common set of medical records? Why is fragmentation a problem even within a single hospital, where errors or miscommunications often seem to result from poor coordination amongst the myriad of professionals treating any one individual patient? Why is health care fragmented both over time, so that too little is spent on preventive care, and across patients, so that resources are often misallocated to the patients who need it least? This book approaches these broad questions with a highly interdisciplinary approach, including chapters by the nation’s leading professors in law, medicine, economics, health, business, and political science.

Professor Elhauge and the contributors provide a multifaceted approach to these multi-dimensional problems. The divergent perspectives and approaches of the contributors provide the reader with an understanding of the intricacies of the system and proposed solutions. The articles address possible causes of fragmentation, including laws that mandate separate payments for each provider, restrict hospitals or others from controlling or rewarding the set of providers treating a patient to assure coordinated care, and provide affirmative disincentives for coordinating care by paying more for uncoordinated care that requires more services. The authors examine and propose reforms that could make our health care system less fragmented, more efficient, and more effective.

This symposium examines the themes and claims of the book, and in particular examines their relevance in the post health care reform world.

The participants will be

John Jacobi

Anup Malani

Abigail Moncrieff

Gwendolyn Roberts Majette

Ani Satz

Richard Saver

Elizabeth Weeks

Vickie J. Williams

Check in Monday for the launch of the symposium.

9

Rape, Consent, Deception, and the Blogosphere

[Preface: As anyone who has ever taught material relating to rape in class well knows, this is among the most sensitive of subjects to discuss. Add to this the way in which typed words lose the inflections and other subtleties of spoken language, and any post on rape threatens to come off as insensitive by accident. With that in mind I have tried to write this post in as sensitive a way as I can, but I also ask the reader to bear with me if their first instinct is to take something I have said the wrong way.  Instead please give it the most charitable of readings]

I have been fascinated on two levels by the recent blogospheric discussion of an Israeli Supreme Court case holding that an individual could be prosecuted for rape when he engaged in sex with a woman that was not the product of sex or coercion because he deceived her as to his religion/ethnicity (he was an Arab not a Jew) and his relationship intentions (to ‘hookup’ instead of looking for a serious relationship leading to marriage).

On the first level, I was intrigued as to why the case got so much interest (and the holding largely hostility) in the blogosphere. I think there are many reasons, but I want to put out two (related but distinct) provocative hypotheses for reaction from readers: (1) The case taps in to some long-suppressed doubts held by some reader on whether non-forced or non-coerced sex counts as rape. (2) The case disturbs because it implies that men can be raped during sex that is not forced or otherwise coerced, and while there are contexts in which many are prepared to believe in male rape (e.g., the prison context) they harbor gender-asymmetrical views of rape  outside those contexts.

One level down, into the actual holding of the case, one thing I find fascinating about this area of law (rape by deception) is that it requires constructing a concept of “essential facts” for which deception vitiates consent. To try and think about this, consider the following cases:

1. Ahmed deceives Beatrice about his religion and ethnicity claiming that he was an orthodox Jew when in fact he was a Muslim Arab. (The most recent Israeli case)

2. Jon convinces Daphne he is his identical twin, Jack, whom Daphne is dating, and Daphne sleeps with him inebriated after a long night of partying.  A real case along these lines in Canada had facts like these.

3. Dil deceives Fergus into believing Dil is a woman when they engage in anal sex.  In fact, Dil is actually a man (inspired by this film).

4. Bree is an M to F transgender person who now passes as a woman. She leads David to believe she was biologically born as a woman when they have sex.

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