Category: Cyberlaw

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Are in-person academic communities luxury goods?

Since I began posting as a guest on Concurring Opinions at the beginning of March, “MOOCs” – massively open online courses – have been repeated topic. The blog search engine reports that the term did not appear on the blog until 25 Feb 2013; in the six weeks since, MOOCs have been a topic herehereherehereherehere, and, in Deven Desai’s interesting post two days ago, here. Deven says, and I agree, that the aggregation of students together inside an immersive academic, learning community is a real good, and one that cannot be duplicated by a set of MOOCs. But the question MOOCs make pressing is how to value that good, once it can be unbundled from training in the classroom. Nannerl Keohane, in a recent review in Perspectives on Politics (11:1, March 2013, p.318), says that “online education … is the easiest and cheapest way to learn a variety of subjects, especially useful ones,” and describes it is the contemporary analogue of “mutual-aid societies and lyceums.” This seems apt.

University insiders like to say that even unbundled academic community is indispensable, and should be subsidized by both state and university. I suspect that the marketplace will put a much lower value on it. State legislators, ever strapped for cash, will likely do so as well. There will still be a market for 24/7, bricks-and-mortar academic communities; but the online availability of downmarket, imperfect, but genuine partial substitutes will mark such communities more clearly as luxury goods. Once such luxuries are no longer inexorably bundled with direct instruction, the argument that they still deserve state or even philanthropic subsidy is not, it seems to me, a slam-dunk.

Deven posted that the key question is how to “leverage MOOCs and other technology to improve the way education is delivered while not offering only the virtual world” but also social context to those not in the luxury-goods market. Another way of phrasing that question is to ask whether there is a mid-market good, somewhere between the aggregation of naked MOOCs and the bricks-and-mortar private college, that could command interest in the marketplace and justify third-party subsidies. What features of the “code” of online courses – the way that they are presented, taught, bundled together, and converted into credentials – might be adjusted to create a closer approximation of an immersive community, without sacrificing the advantages virtual teaching offers in terms of access over distance, asynchronicity, economies of scale, and cost?

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The school of the future: request for input

This post is a nerd crowdsourcing request. As a guest blogger I don’t know my audience as well as I might, but I am heartened by the presence of “science fiction” among the options my hosts give me for categorizing my posts; and my teenager assures me that “nerd” is a compliment.

As several of my earlier posts suggest, I am interested in the impact of virtual technology upon K-12 schooling; and one thing I have been doing in my spare time is looking at literary accounts, highbrow and low, of what schooling in the future might look like. A colleague gave me Ernest Kline’s recent Ready Player One, which imagines school in a fully virtualized world that looks a lot like the school I went to, complete with hallways, bullies, and truant teachers – but the software allows the students to mute their fellows and censors student obscenity before it reaches the teachers’ interfaces. Another colleague reminded me of Asimov’s 1951 The Fun They Had, where the teacher is mechanical but the students still wiggly and apathetic. On the back of a public swapshelf, I found the Julian May 1987 Galactic Milieu series, which imagines brilliant children, all alone on  faraway planets, logging on with singleminded seriousness to do their schoolwork all by their lonesomes. And my daughter gave me Orson Scott Card’s famous Ender’s Game, where the bullying is more educative than the mathematics, and scripted by the adults much more carefully.

That seems like an extensive list but really it’s not, and I was never a serious sci-fi person. If anyone is willing to post in the comments any striking literary accounts of schooling in the future, I’d be grateful.

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The child, not the school

The Indiana vouchers program I posted about earlier, significant on its own, also partakes of a trend. The New York Times gets it:

A growing number of lawmakers across the country are taking steps to redefine public education, shifting the debate from the classroom to the pocketbook. Instead of simply financing a traditional system of neighborhood schools, legislators and some governors are headed toward funneling public money directly to families, who would be free to choose the kind of schooling they believe is best for their children, be it public, charter, private, religious, online or at home.

In particular, the Times is right that what is sought here is redefinition. Once states established and supported institutions – public schools – that parents could take or leave, so long as they educated their children somehow. The new paradigm has states instead provide a quantum of funding earmarked for each child, that parents can deploy at any educational institution of their choosing. The fact that the aid attaches to the child and follows her to her family’s chosen school is much more important than the various labels ascribed to the funding and/or the institutional provider – public, private, charter, voucher.

As people learn to function within, and get used to, this new paradigm, they will stop thinking of educational politics as the way to create good public schools, and start thinking of it in terms of how big the aid pie is and how it gets divided up. Whether a school is public or private, online or bricks-and-mortar, religious or not – these stop being political questions and start being questions that markets will resolve through supply and demand. Read More

3

Driverless Cars May Avoid Accidents, But Not Headlines

As Deven Desai points out yesterday, driverless cars could bring a variety of benefits.  For instance: driverless cars may be much safer than human drivers.  Human error accounts for an enormous percentage of driving fatalities, which number in the tens of thousands. In a “perfect,” post-driver world, the circle of fatalities caused by vehicles would simply shrink.  The resulting diagram would look something like this:

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Netflix, Facebook, and Social Sharing

Just as Neil Richards’s The Perils of Social Reading (101 Georgetown Law Journal 689 (2013)) is out in final form, Netflix released its new social sharing features in partnership with that privacy protector, Facebook. Not that working with Google, Apple, or Microsoft would be much better. There may be things I am missing. But I don’t see how turning on this feature is wise given that it seems to require you to remember not to share in ways that make sharing a bit leakier than you may want.

Apparently one has to connect your Netflix account to Facebook to get the feature to work. The way it works after that link is made poses problems.

According to SlashGear two rows appear. One is called Friends’ Favorites tells you just that. Now, consider that the algorithm works in part by you rating movies. So if you want to signal that odd documentaries, disturbing art movies, guilty pleasures (this one may range from The Hangover to Twilight), are of interest, you should rate them highly. If you turn this on, are all old ratings shared? And cool! Now everyone knows that you think March of the Penguins and Die Hard are 5 stars. The other button:

is called “Watched By Your Friends,” and it consists of movies and shows that your friends have recently watched. It provides a list of all your Facebook friends who are on Netflix, and you can cycle through individual friends to see what they recently watched. This is an unfiltered list, meaning that it shows all the movies and TV shows that your friends have agreed to share.

Of course, you can control what you share and what you don’t want to share, so if there’s a movie or TV show that you watch, but you don’t want to share it with your friends, you can simply click on the “Don’t Share This” button under each item. Netflix is rolling out the feature over the next couple of days, and the company says that all US members will have access to Netflix social by the end of the week.

Right. So imagine you forget that your viewing habits are broadcast. And what about Roku or other streaming devices? How does one ensure that the “Don’t Share” button is used before the word goes out that you watched one, two, or three movies on drugs, sex, gay culture, how great guns are, etc.?

As Richards puts it, “the ways in which we set up the defaults for sharing matter a great deal. Our reader records implicate
our intellectual privacy—the protection of reading from surveillance and interference so that we can read freely, widely, and without inhibition.” So too for video and really any information consumption.

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MOOCs in law schools

Last week both Frank and I blogged about the MOOC, the “massive open online course.” Also last week a substantial and prominent group of academics posted an open letter to the ABA that urged legal educators to consider, among other reforms, “building on the burgeoning promises of internet-distance education.” (The letter garnered positive press in diverse fora.) Might the MOOC platform be part of that “promise”?

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Cyber-charter schools and religious education

I wrote a few days ago about the rise of the cyber-charter school, and its potential to unsettle constitutional and statutory regimes that govern K-12 education. Right now I am finishing off an article that discusses this with respect to religion. A private religious school is not allowed to operate unless it meets state requirements for all private schools, which include minimum standards for the teaching of secular subjects like math and history. But religious schools must bear the cost of that secular instruction, even though their students would receive similar instruction for free were they to enroll in public school. (States may elect to provide various kinds of aid to religious private schools at the margins, but not to the extent of absorbing the costs of secular instruction.) This minimizes interpenetration between the state-funded public school sector and the religious, private-school sector. It also makes religious schooling more expensive than it otherwise would be.

But consider a religious private school that, rather than offering secular education itself, facilitates the enrollment of its students in a state-funded cyber-charter. The instructional program of the cyberschool is completely secular. But many cyber-charters are asynchronous as well as untethered to place; students may log into school when and from where they please. So why not from inside a religious establishment? Under this model, religious school students pursue their secular studies under the physical supervision of religious teachers but the intellectual supervision of the secular charter school operators. The religious school pays for the supervision but the secular one for the teaching. So (and here I am paraphrasing an earlier piece of mine), a religious teacher might work with half the class on some religious topic while the other half, on its own for the moment, engages in secular cyber-study under the same teacher’s passive supervision. Or a cleric might begin a 45-minute English lesson with a prayer—right before secular studies begin—or interrupt a cyber-biology lesson to admonish students that the material that they are covering is a tissue of lies.

The religious school not only saves a fair bit of money by this approach, savings it can pass on to its customers, but it engineers the kind of merger between publicly funded secular education and privately funded religious schooling that our system, until now, has gone to some lengths to prohibit. But I can identify no legal problem with a religious school adopting this strategy. Unlike state aid for secular instruction in religious schools, which raises real risks either of religious schools repurposing secular funds to religious ends or heavy-handed state involvement in quotidian regulation of religious schools’ operations, cyberteaching is 100% secular and under secular state control. Conceptually its use by the religious school is very similar to such a school’s use of a public library, or of state-provided maps or films. Indeed, I think it would be unconstitutional to allow students to log on to cyberschool anywhere and anytime except while under the physical supervision of a religious teacher. It would surely be unconstitutional to prohibit religious teachers from putting their own gloss, on their own time, upon what the students are learning in their secular classes.

But logistically the model is something very new. It creates a religious school whose secular program is state-funded and largely state-directed, but whose scheduling and context is in religious hands.

Short of abolishing cybercharters (which some states have done) can such initiatives be blocked? If not, is that a reason to abolish them? Or might it be acceptable, or even welcome, that the internet can create a new kind of religious pluralism in American education, where secular schooling remains under secular direction but which lacks the firm wall between its pursuit and the acquisition of religious education?

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Virtual Schooling in the K-12 sector

Lots of people are talking about the accelerating penetration of virtual platforms in the higher education sector. It’s of course unknown whether the massive open online course (MOOC) will be the vector that transforms traditional higher ed the way that so many other industries are being transformed by interconnectivity.  But it seems clear that there will be some vector.  (I got my first ad for a law school MOOC this week.)

Virtuality poses two basic challenges to higher education. The first is about pedagogy: What might be gained, and what lost, from shifting from a bricks-and-mortar learning environment to a virtual one?  The second is about money and institutions:  What happens to the business model of colleges and universities as virtual platforms become cheaper, easier to access, and increasingly popular?

Less discussed but potentially just as important is the penetration of virtuality into K-12 ed.  Cyber-charter schools are becoming ubiquitous, enrolling  tens of thousands of children. Several states have created virtual school districts.  In Florida, I’m told, you cannot graduate from high school without taking at least one virtual course.

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Is Forensics Law?

I’ve blogged on these pages before about the claim, popularized by Larry Lessig, that “code is law.”  During the Concurring Opinions symposium on Jonathan Zittrain’s 2010 book The Future of The Internet (And How To Stop It), I cataloged the senses in which architecture or “code” is said to constitute a form of regulation.  “Primary” architecture refers to altering a physical or digital environment to stop conduct before it happens.  Speed bumps are a classic example.  “Secondary” architecture instead alters an environment in order to make conduct harder to get away with—for instance, by installing a traffic light camera or forcing a communications network to build an entry point for law enforcement. Read More

“The Creditor Was Always Right”

What would a world of totally privatized justice look like? To take a more specific case—imagine a Reputation Society where intermediaries, unbound by legal restrictions, could sort people as wheat or chaff, credit-worthy or deadbeat, reliable or lazy?

We’re well on our way to that laissez-faire nirvana for America’s credit bureaus. While they seem to be bound by FCRA and a slew of regulations, enforcement is so wan that they essentially pick and choose the bits of law they want to follow, and what they’d like to ignore. That, at least, is the inescapable conclusion of a brief but devastating portrait of the bureaus on 60 Minutes. Horror stories abound regarding the bureaus, but reporter Steve Kroft finds their deeper causes by documenting an abandonment of basic principles of due process:
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