Category: Law and Humanities

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Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

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Why Some Risk Sending Intimate Pictures to “Strangers” and What It Says About Privacy

It is, as always, an honor and a pleasure to speak with the Co-Op community. Thank you to Danielle for inviting me back and thank yous all around for inviting me onto your desks, into your laps, or into your hands.

My name is Ari and I teach at New York Law School. In fact, I am honored to have been appointed Associate Professor of Law and Director of the Institute for Information Law and Policy this year at NYLS, an appointment about which I am super excited and will begin this summer. I am also finishing my doctoral dissertation in sociology at Columbia University. My scholarship focuses on the law and policy of Internet social life, and I am particularly focused on online privacy, the injustices and inequalities in unregulated online social spaces, and the digital implications for our cultural creations.

Today, and for most of this month, I want to talk a little bit about the relationship between strangers, intimacy, and privacy.

Over the last 2 years, I have conducted quantitative surveys and qualitative interviews with almost 1,000 users of any of the several gay-oriented geolocation platforms, the most famous of which is “Grindr.” These apps are described (or, derided, if you prefer) as “hook up apps,” or tools that allow gay men to meet each other for sex. That does happen. But the apps also allow members of a tightly identified and discriminated group to meet each other when they move to a knew town and don’t know anyone, to make friends, and to fall in love. Grindr, my survey respondents report, has created more than its fair share of long term relationships and, in equality states, marriages.

But Grindr and its cousins are, at least in part, about sex, which is why the app is one good place to study the prevalence of sharing intimate photographs and the sharers’ rationales. My sample is a random sample of a single population: gay men. Ages range from 18 to 59 (I declined to include anyone who self-reported as underage); locations span the globe. My online survey asked gay men who have used the app for more than one week at any time in the previous 2 years. This allowed me to focus on actual users rather than those just curious. Approximately 68 % of active users reported having sent an intimate picture of themselves to someone they were chatting with. I believe the real number is much higher. Although some of those users anonymized their initial photo, i.e., cropped out their head or something similar, nearly 89 % of users who admitted sending intimates photos to a “stranger” they met online also admitted to ultimately sending an identifiable photo, as well. And, yet, not one respondent reported being victimized, to their knowledge, by recipient misuse of an intimate photograph. Indeed, only a small percentage (1.9) reported being concerned about it or letting it enter into their decision about whether to send the photo in the first place.

I put the word “stranger” in quotes because I contend that the recipients are not really strangers as we traditionally understand the term. And this matters: You can’t share something with a stranger and expect it to remain private. Some people argue you can’t even do that with a close friend: you assume the risk of dissemination when you tell anyone anything, some say. But, at least, the risk is so much higher with strangers such that it is difficult for some to imagine a viable expectation of privacy argument when you chose to share intimate information with a stranger. I disagree. Sharing something with a “stranger” need not always extinguish your expectation of privacy and your right to sue under an applicable privacy tort if the intimate information is shared further.

A sociologist would say that a “stranger” is a person that is unknown or with whom you are not acquainted. The law accepts this definition in at least some respects: sometimes we say that individuals are “strangers in the eyes of the law,” like a legally married same-sex couple when they travel from New Jersey to Mississippi. I argue that the person on the other end of a Grindr chat is not necessarily a stranger because nonverbal social cues of trustworthiness, which can be seen anywhere, are heightened by the social group affinity of an all-gay male environment.

Over the next few weeks, I will tease out the rest of this argument: that trust, and, therefore, expectations of privacy, can exist among strangers. Admittedly, I’m still working it out and I would be grateful for any and all comments in future posts.

I’ve heard people say books are getting more ‘gritty’, meaning more violent and less stylised in general. The realism there might be in terms of warrior not shrugging off their wounds and being fine the next day etc. Researched realism and detailed city/country mechanics are not something I was aware of a movement toward. To me nothing is added by, for example, the author working out a grain distribution network. I’m interested in story and character, not mechanics.

— Mark L.

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Law and Hard Fantasy Interview Series: Mark Lawrence

Broken-EmpireI’ve sporadically run an interview series with fantasy authors who generally write in the burgeoning genre of gritty / hard / dark epic fantasy.  (I’m, obviously, a fan.)  The series began with this book review post, and continued with interviews of George R. R. Martin and Patrick Rothfuss.  The series continues today as I interview Mark Lawrence.  Mark is the author of the Broken Empire trilogy, and the forthcoming Red Queen’s War.  His work has been lauded on both sides of the Atlantic (Mark was raised in the U.K., where he works as a research scientist).  He was gracious enough to respond to my email queries, which follow after the jump.

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Trust is a Funny Thing

Last time, we discussed briefly that Erving Goffman’s social theory gives us an interactional perspective on privacy as a social relationship of trust and discretion. But trust, like love and life, is a funny thing. Trust is sometimes confused with naivete (Marshall 1976) or hallowed by optimism (Millman 2001), but trust, and its corollary, discretion, are what makes social interaction possible. I would like us to think about privacy this way: trust and discretion are what online best practices should encourage; trust and discretion, not an individual right, are what society should actively protect.

This is not a common denominator approach (Solove 2001). I am not arguing that everything we traditionally think of as “private” is trust and discretion. Nor is this a pure social network approach (Strahilevitz 2005). I am not arguing that we should protect privacy based on the suggestion from social science research that individuals tend to share or disclose otherwise private facts about themselves when they assume that the disclosed facts will not jump from one social network to another. Professors Solove and Strahilevitz are correct in their warnings and recommendations. But I believe that protecting disclosures where trust and discretion exist add value to both of their important contributions in the following ways:

First, intimate sharing among strangers is a fact we cannot — and the law should not — ignore. Professor Strahilevitz’s masterful work, A Social Network Theory of Privacy, does a good job surveying some of the social network research about sharing. But that research is in its relative infancy, as we all acknowledge. What is missing is a detailed understanding of the type of information shared with different groups of friends, particularly bare acquaintances and strangers. I hope to contribute to this understanding with the quantitative and empirical portions of my dissertation. The beta version of my surveys seem to suggest that highly intimate — determined on a subjective scale — information is often shared with veritable strangers. If sharing with strangers exists, it seems like tilting at windmills for the law to try to erect barriers that we know will fall, at best, or create perverse incentives for social sharers and private industry, at worse.

Second, trust can exist among strangers (Macy and Skvoretz 1998) and further research into the social determinants of that trust can give us the tools we need to determine when it is reasonable for judge or jury to protect the privacy interests of certain actors. Much of the social science literature about trust among strangers is in the game theory context (Macy and Skvoretz 1998, Buchan 2002, Croson 2002, Grabner-Kraeuter 2002, etc.). The quantitative studies in my dissertation have the potential to help us understand privacy among strangers outside the decision-making and consumer context, but inside the friend/social sharing context. It is, for example, too simple to say that people “sext” because they don’t believe in or understand or think about or care about privacy. Nor is it enough to say that we engage with strangers in the physical world and online because we think our social networks are separate. I would like to prove that trust and discretion exist among strangers online when sufficient information exists to act as social cues for trustworthiness, with the most important cue being embeddedness, or connections to other individuals for whom the trustworthiness decision has already been made. That decision may, at times, be related to the target’s position in your social network. But more likely, embeddedness is an overarching factor for which social network position is a proxy, or social network position is but one in a series of cues for embeddedness. In either case, the social science evidence does not require us to stop at social network position. We need to take another step.

Much of this work is decidedly in the work-in-progress stage. I have appreciated the comments so far and look forward to any comments, questions from the CoOp community.

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What Can Erving Goffman Teach Us About “Privacy”

I hope those celebrating Yom Kippur had a an easy fast.

We’ve already seen a few clues into the famous sociologist’s assumptions about privacy. As I discussed last week, Goffman seemed to fall into the trap of burdening his vision of “the private” with a negative moral judgment: we do things in secret because to do them in public would be embarrassing, discrediting, or worse. The private sphere was assumed to be the place where we literally let our hair down, literally let out our gut, and literally curse our our bosses. (And I am using the word “literally” correctly here, not according to the frustrating new definition, which will literally — ahem — make your head explode!).

In a series of short posts, I would like to flesh out what else we can learn from Goffman regarding the sociologists’ assumptions about privacy. It’s worth looking at Goffman, not only because of the seminal role he continues to play in sociological theory (if not methods) but because his theories are part of the culture and zeitgeist in which privacy scholars from the legal and philosophical worlds also live.

Goffman is famous, in part, for his back stage/front stage distinction in his discussion of micro- and macro-social interaction. In The Presentation of Self in Everyday Life, Goffman (1959) analyzes social interaction through an extended theatrical conceit, comparing individuals to actors on a stage. He separates the front stage, where the performance of social interaction occurs (p. 107), and the back stage, where individuals can drop the façade of performance (p. 112). And he describes them as places, or “setting[s]” (Goffman, 1959, p. 107). The back stage is a place of hiding (Goffman, 1959, p. 113), so that devices like telephones, closets, and bathrooms “could be used ‘privately” (p. 112). It is also cut off from the front stage by a partition, passageway, or curtain (p. 112). The backstage, then, is defined by providing the performer with a private space—like a home, a green room, or a bathroom—to do certain necessary things away from an audience.

This sounds like a perfect tool for supporting spatial assumptions about privacy. But that would be taking Goffman too literally.

Perhaps we should resign ourselves to the idea that Goffman is a moralist who has a limited view of privacy as a place for deviance. My previous post certainly offered strong evidence of that. But, again, that might be taking Goffman too literally. More importantly, it misses what I feel is his greatest contribution to the study of privacy from a sociological standpoint.

Consider Goffman’s (1972) explanation for why staring and “intrusive looks” (p. 45) are, to use his words, “invasions of privacy.” Staring, Goffman (1963) writes, is not an ordinary or appropriate social interaction: it discriminates against the target and puts him “in a class apart” (p. 86). You stare at zoo monkeys, not people, so the invasion of privacy must either be a threat to the victim’s dignity as an end in himself, per Kant, or a breach of some implied duty that individuals owe one another. Goffman, true to his sociological roots, argues the latter, calling it a duty “civil inattention” (p. 85). This has groundbreaking implications for the study of privacy.

Civil inattention is a form of polite recognition of strangers, manifesting itself in nods of acknowledgment alongside a respectful modesty not to intrude where you do not belong. Staring at a physically injured or deformed bystander is the antithesis of civil inattention. In this example, the target might consider his injury “a personal matter which [he] would like to keep private” (Goffman, 1963, p. 86), but the fact that it is visible makes it publicly obvious. This obvious injury “differs from most other personal matters”—namely, those personal or private things that go on in the private sphere—because everyone has access to the injury regardless of how much the target would like to keep it secret (Goffman, 1963, p. 86). We are told not to stare precisely because the behavior’s abnormality disrupts the normal course of social interaction. It has been known to cause fear and flight (Ellsworth, 1972).

And so, as bystanders in general, we owe a duty to other individuals to treat them with discretion. Every interaction includes bystanders’ social obligation to protect social actors so that their interactions can continue. We have a “tactful tendency … to act in a protective way in order to help the performers save their own show,” Goffman (1959) writes, using his theatrical conceit to analogize to everyday social interaction (p. 229). We show extra “consideration” for novice performers, i.e., the young, who, because of the likelihood of mistakes, could damage ongoing social interaction by lapsing, forgetting how to behave, or brazenly engaging in asocial behavior, like nail-biting, nose-picking, or staring (Goffman, 1959, p. 323, 132). This tact is simply another word for discretion and respect: the knowledge that he is a beginner is appropriately set aside and ignored so that the performance can continue despite his mistakes. We also owe a measure of “tactful inattention” to neighboring conversations and nearby individuals to guarantee the “effective privacy” of others, a principle colloquially encapsulated by the phrase, “keep one’s nose out of other people’s” business (Goffman, 1959, p. 230). Privacy invasions, therefore, are not simple intrusions into personal territory or the disclosure of negative behaviors; rather, they are socially inappropriate behaviors that violate the trust and discretion we owe others.

Privacy-as-trust and discretion is also captured in Goffman’s early essay, The Nature of Deference and Demeanor (1967). Deference conveys respect “to a recipient or of this recipient, or of something of which this recipient is taken as a symbol, extension, or agent” (p. 56). In doing so, deference certainly imbues others with value and dignity; but that is merely a byproduct of the overarching purpose of creating a path for interaction. Rules of deference and respect constitute “rules of conduct which bind the actor and the recipient together” and “are the buildings of society” (Goffman, 1967, p. 90). In others words, they cue others as to our potential as interaction partners. This is the role of privacy. It creates a sense of confidence that allows people to share.

Teasing out this argument is how I would like to spend the remainder of my posts for the month. It highlights the central theoretical contribution of my dissertation.

And with that “Who-Shot-J.R.”-style cliffhanger, I leave you… for now.

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Deviance in the Sociologist’s Assumptions About Privacy

When last we spoke before the Jewish New Year (Shanah Tova, u’metuka to all who celebrate and G’mar tov as we approach the Day of Atonement), we had only begun to touch on the sociologist’s assumptions about privacy. In that post, I used the example of the sociologist Robert Maxwell’s assumption when he was studying sexual practices and social mores that “private” automatically referred to a “secret” or “hidden” space. I do not think, and did not mean to imply, that Professor Maxwell set out to study privacy per se; rather, it is clear from his discussion and his notes that the private world was a hidden world separated by walls. That’s why he studied wall construction permeability when he wanted to determine the pervasiveness of sexual norms.

The limitation to spaces is only one problem with the traditional sociologist’s assumptions about privacy. Another has to do with secrets. An entire branch of sociology focuses on secrets, which may indeed be a subset of the entire world of so-called private things. But too often, sociologists burden their discussions of private secrets with a normative moral weight: that is, a secret is private, or must be kept private, because it is deviant.

In his seminal article, The Sociology of Secrecy and of Secret Societies, Georg Simmel concluded that privacy is a “universal sociological form” defined by hiding something. It is universal in that we do it all the time: If all relationships between people are based on knowing something about each other, keeping certain facets of ourselves hidden can define those relationships. This does not necessarily mean that the person who knows more about us is more correct in his assessment of who we are; rather, different pictures of us are true for different people. Secrecy, therefore, allows us to do things and maintain relationships we would not otherwise be able to in a world of complete knowledge.

Simmel’s theory has one distinct advantage over any conception of privacy based on spaces: his discourse on secret societies can help us understand when a secret has ceased to become private. Privacy-as-separation fails in part because it is too strict—privacy can be eroded when one other person gains access. For Simmel, a secret can maintain its private nature, its inherent secrecy, throughout a group of people when keeping the secret is part of the identity of that group. Members of secret societies “constitute a community for the purpose of mutual guarantee of secrecy.” They define themselves by engaging in rituals and through separation from the rest of society. This does not just happen in cults; social cliques turn their backs on others or deny conversation to outsiders and groups of friends maintain each others’ secrets all the time. In all cases, the group is defined by what it knows and it expresses its privileged status by closure.

A mentor mine, the sociologist Diane Vaughan, connected this conception of secrecy with intimacy in her study of how couples break up. “We are all secret-keepers in our intimate relationships,” Professor Vaughan argues. Secrets can both enhance relationships, by smoothing over differences or by creating the intimacy of co-conspirators, and contribute to their collapse, by allowing plans to be developed without open inspection, intrusion, consent, or participation from others. And Erving Goffman would agree that this type of secrecy is an important element of privacy. “If an individual is to give expression to ideal standards during his performance,” Goffman writes, “then he will have to forgo or conceal action which is inconsistent with these standards.” In this view, privacy is the concealment of things that contradict an individual’s public facade: the “private sacrifice” of some behavior will permit the performance to continue. This is what Goffman’s famous back stage is really for. It is not, as a spatial theory of privacy would suggest, a room, stall, or secluded place; rather, it is the locus of private behavior, of secrets. For example, servants use first names, workers laugh and take breaks, and management and employees may eat together and converse informally. In some cases, this culture is associated with a space; but it is what we do in the backstage, the secrets we hide there, that defines it.

But the central failure of assuming privacy as something to do with secrecy is the tendency to conceive of those secrets as discrediting, embarrassing, or, to use the sociologist’s term, deviant. Deviance refers to behavior that violates the norms of some group. A tilt toward deviance, in turn, places a severe limitation on using secrecy to justify a legal right to privacy: if our secrets are so discrediting, society would rarely, if ever, see a need to protect them.

Much of the sociological discourse on secrecy and intimacy as it relates to privacy devolves into a normative moral judgment about those secrets. Despite the fact that he professes to make no such judgments, Goffman’s view of secret, hidden behaviors, for example, has a decidedly negative bias. The back stage is littered with “dirty work” and “inappropriate” conduct done in “secret” if it was fun or satisfying in some way. From this introduction of the back stage, Goffman only further burdens it with a normative twist. People “lapse” in the back stage, drifting toward indecorous behavior. They laugh at their audience, engage in mock role-playing, and poke fun through “uncomplimentary terms of reference.” They derogate others and brazenly lie and keep “dark” secrets.” Behind involvement shields, individuals do “sanctionable” or “unprofessional” things, like nurses smoking in a tunnel or adolescent horseplay outside of the view of others. Goffman also points to the little misbehaviors—activities he calls “fugitive involvements,” no less—that you can engage in when outside the public view:

While doing housework: You can keep your face creamed, your hair in pin curls; … when you’re sitting at the kitchen counter peeling potatoes you can do your ankle exercises and foot strengtheners, and also practice good sitting posture. … While reading or watching TV: You can brush your hair; massage your gums; do your ankle and hand exercises and foot strengtheners; do some bust and back exercises; massage your scalp; use the abrasive treatment for removing superfluous hair.

Privacy, then, is about concealing bad things, not just concealment in general. The anonymity provided by privacy does not merely allow someone to do something different; rather, it allows him to “misbehave,” to “falsely present[] himself, or do the “unattractive” things inappropriate in the public sphere.

One of Goffman’s major works, Stigma, is entirely concerned with negative or inappropriate behavior. That may sound like an uninspired conclusion given the title, but what is most telling is not the mere recitation of stigmatizing activities and things, but rather the implication that the private sphere is defined by stigma. Stigmas are “discrediting,” “debasing,” and “undesirable.” They are “secret failings” that make us “blameworthy” and “shameful.”

It is hard to deny the moral dimension to this discussion of private behaviors, activities, and symbols. They are stigmatizing, at worst, or dissonant with normal social interaction, at best. In either case, there is a moral dimension that burdens privacy with an attendant profanity and that profanity does violence to our ability to protect privacy thus understood: if the private sphere is characterized by dark secrets, or behaviors and activities that society refuses to tolerate, it is unclear how a right to privacy could ever exist.

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Introductions and the Sociology of Privacy

It is always a pleasure to join the Concurring Opinions community, one that I find supportive and tough, insightful and witty. I hope to contribute to ongoing discussions, raise a few eyebrows and bring some new perspective to issues of great concern to us all. Thanks to the incomparable Danielle Citron and the Con-Op community of leaders for having me on this month, and thank you in advance to all the readers for indulging my interest in sociology and privacy.

That is what I’d like to write about this month. My research is on the law and sociology of privacy and the Internet, but I am particularly concerned with the injustices and inequalities that arise in unregulated digital spaces. This was the animator of my previous work on bullying and cyberharassment of LGBT youth. This month, I would like to speak more broadly about how sociologists (I am completely my Ph.D. in sociology at Columbia U) talk about privacy and, by the end of the month, persuasively argue that we — lawyers, legal scholars, sociologists, psychologists, economists, philosophers and other social scientists and theories — are, for the most part, thinking about privacy too narrowly, too one-dimensionally, too pre-Internet to adequately protect private interests, whatever they may be. But before I get there, let me start small.

Many of us are familiar with the work of legal and economic privacy scholars, from Dan Solove to Alessandro Acquisti, from Jeffrey Rosen to Larry Lessig and Julie Cohen. All incredibly smart and insightful academics who have taught me much. But many are less familiar with sociologists like Robert J. Maxwell (not to be confused with the Robert Maxwell who produced “Lassie”) who’s work I would like to discuss briefly. I argue that Maxwell’s work evokes a typically narrow conception of privacy too common among sociologists: that privacy is, at best, about mere separation from others and, at worst, about the space for deviance.

Maxwell wanted to know about the presence of premarital sex in preindustrial societies. So, using an established data set including all sorts of details about these societies, Maxwell decided to look at the connection, if any, between sexual norms and, of all things, the permeability of wall construction materials. The codings for whether sex was allowed ranged from “premarital relations not allowed and not sanctioned unless pregnancy results” to “insistence on virginity; premarital sex relations prohibited, strongly sanctioned in fact rare.” Wall material codings ranged from the relatively impermeable “stone,” “stucco,” “concrete” and “fired brick” to “nonwalls” (literally, no walls, or temporary screens). He was working off the glass houses hypothesis — people who live in glass houses will not throw stones. Therefore, he thought that the more permeable the wall, the less rigid the antisex norms.

He was right.

He found that there was inverse relationship between the permeability of the materials used in wall construction and the rigidity of the norms regulating premarital sex for women.

The data provide a simple, though imperfect, proxy for talking about privacy in a discrete social unit. Walls are barriers to knowledge about what’s going on behind them (though, not impenetrable barriers, see Kyllo v. United States, 533 U.S. 27 (2001) (heat sensors used to pierce the wall of a home)). Strong anti-premarital sex norms existed in communities that could afford to have them, i.e., communities that had impenetrable walls to create hiding spaces. Communities without walls or hiding places more likely had their members have sex out in the open or, at least, in view of others. They could not afford or were not able to have strict antisex norms.

This tells us two things about how sociologists study privacy.

First, sociologists tend to think about the private as separate from the public and indulge in an oft-used spatial analogy. In fact, they’re not alone. Much of the social science literature uses the rhetoric of spaces, territories, walls, and other indicators of literal separation to support theoretical arguments. For example, Joseph Rykwert, an historian of the ancient world, argued that there was a direct correspondence between ancient conceptions of privacy and the women’s rooms in the home, on the one hand, and public behavior and the men’s rooms, on the other. The distinction in the home was literal. In his work on secret societies, Georg Simmel not only argued that “detachment” and “exclusion” were necessary for the success of a secret organization, but analogized the role of the secret to a wall of separation: “Their secret encircles them like a boundary, beyond which there is nothing.” Erving Goffman, a preeminent sociologists whose work almost every undergraduate reads in a Sociology 101 course, built his entire microsociology theory of how people behave in public around a theatrical conceit that distinguished between the “front stage,” where the action happened, and the “back stage,” where the actors could kick back. And so, when the Maxwell wanted to study sexual intimacy in pre-industrial societies, he chose to study wall construction, material permeability, and hidden spaces to determine if there was a relationship between intimacy norms in the greater society and private behavior.

But conceiving of privacy as sequestration or as a hidden space has its limits. Neither Goffman nor Simmel ever really meant their analogy to be put into practice. Both wrote much about how privacy could exist in public, in crowded rooms and when you around many other people. And yet privacy-as-sequestration in a space permeates the law of privacy, from the continued sanctity of the home to old cases like Olmstead v. United States, 277 U.S. 438 (1928), that hinged privacy invasions on an actual, physical trespass. Some sociologists appear to be guilty of the same lack of imagination that Justice Brandeis called out in his Olmstead dissent: “The protection guaranteed by the amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone-the most comprehensive of rights and the right most valued by civilized men.”

The second thing this approach to the study of privacy tells us about sociologists and privacy is that they, and many other scholars, burden privacy with a moral dimension. They associate privacy and private places with deviance. This is where I will pick up in my next post.

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The Rule of the Clan – Mark Weiner’s new book

What is happening with the world? Is it falling apart? Is the state the problem? Is everything to big? Is everyone better off breaking into small groups? Mark Weiner has answers in his book The Rule of the Clan. Understanding clans helps us understand the problems and relationships among individual liberty, the state, domestic policy, and foreign policy.

Mark Weiner is one of the best thinkers I know. I will note that Mark is one of my dearest friends as well. Mark has authored three books. The first two have won awards. The latest, Rule of the Clan, is, to me, yet more impressive. I will be posting more about this book. But for now, here is Mark on the Brian Lehrer Show.

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On Information Justice

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

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Is IP for People or Corporations?

Another day brings another cornucopia of exciting and important comments on my book, From Goods to a Good Life: Intellectual Property and Global Justice. I thank Professors Molly Van Houweling, Jessica Silbey, Michael Madison, and Mark McKenna, and earlier Concurring Opinions commentators —Professors Deven Desai, Lea Shaver, Laura DeNardis, Zahr Said, and Brett Frischmann—for reading my book so carefully, and engaging it so helpfully. I focus here on Professor Van Houweling’s framing of an important issue arising in the discussion.

Professor Van Houweling has provoked stimulating discussion with her astute observation of two competing visions of intellectual property within the emergent “capabilities approach” school of intellectual property we identified earlier this week. Professor Van Houweling contrasts Professor Julie Cohen’s alternative justification of copyright as a tool for promoting corporate welfare (sustaining creative industries), with my attention to intellectual property laws as tools for promoting livelihood and human welfare (sustaining human beings in their quest for a good life).

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