Archive for the ‘Sociology of Law’ Category
posted by Frank Pasquale
The LSE has a consistently illuminating podcast series, but Nick Couldry’s recent lecture really raised the bar. He seamlessly integrates cutting edge media theory into a comprehensive critique of social media’s role in shaping events for us. I was also happy to hear him praise the work of two American scholars I particularly admire: former Co-Op guest blogger Joseph Turow (whose Daily You was described as one of the most influential books of the past decade in media studies), and Julie Cohen (whose Configuring the Networked Self was featured in a symposium here).
I plan on posting some excerpts if I can find a transcript, or a published version of the talk. In the meantime, some more brilliant thoughts on social media, this time from Ian Bogost:
For those of us lucky enough to be employed, we’re really hyperemployed—committed to our usual jobs and many other jobs as well. . . . Hyperemployment offers a subtly different way to characterize all the tiny effort we contribute to Facebook and Instagram and the like. It’s not just that we’ve been duped into contributing free value to technology companies (although that’s also true), but that we’ve tacitly agreed to work unpaid jobs for all these companies. . . . We do tiny bits of work for Google, for Tumblr, for Twitter, all day and every day.
Today, everyone’s a hustler. But now we’re not even just hustling for ourselves or our bosses, but for so many other, unseen bosses. For accounts payable and for marketing; for the Girl Scouts and the Youth Choir; for Facebook and for Google; for our friends via their Kickstarters and their Etsy shops; for Twitter, which just converted years of tiny, aggregated work acts into $78 of fungible value per user.
posted by Frank Pasquale
The reader of Talent Wants to be Free effectively gets two books for the price of one. As one of the top legal scholars on the intersection of employment and intellectual property law, Prof. Lobel skillfully describes key concepts and disputes in both areas. Lobel has distilled years of rigorous, careful legal analysis into a series of narratives, theories, and key concepts. Lobel brings legal ideas to life, dramatizing the workplace tensions between loyalty and commitment, control and creativity, better than any work I’ve encountered over the past decade. Her enthusiasm for the subject matter animates the work throughout, making the book a joy to read. Most of the other participants in this symposium have already commented on how successful this aspect of the book is, so I won’t belabor their points.
Talent Want to Be Free also functions as a second kind of book: a management guide. The ending of the first chapter sets up this project, proposing to advise corporate leaders on how to “meet the challenge” of keeping the best performers from leaving, and how “to react when, inevitably, some of these most talented people become competitors” (26). This is a work not only destined for law schools, but also for business schools: for captains of industry eager for new strategies to deploy in the great game of luring and keeping “talent.” Reversing Machiavelli’s famous prescription, Lobel advises the Princes of modern business that it is better to be loved than feared. They should celebrate mobile workers, and should not seek to bind their top employees with burdensome noncompete clauses. Drawing on the work of social scientists like AnnaLee Saxenian (68), Lobel argues that an ecology of innovation depends on workers’ ability to freely move to where their talents are best appreciated.
For Lobel, many restrictions on the free flow of human capital are becoming just as much of a threat to economic prosperity as excess copyright, patent, and trademark protection. Both sets of laws waste resources combating the free flow of information. A firm that trains its workers may want to require them to stay for several years, to recoup its investment (28-29). But Lobel exposes the costs of such a strategy: human capital controls “restrict careers and connections that are born between people” (32). They can also hurt the development of a local talent pool that could, in all likelihood, redound to the benefit of the would-be controlling firm. Trapped in their firms by rigid Massachusetts’ custom and law, Route 128′s talent tended to stagnate. California refused to enforce noncompete clauses, encouraging its knowledge workers to find the firms best able to use their skills.
I have little doubt that Lobel’s book will be assigned in B-schools from Stanford to Wharton. She tells a consistently positive, upbeat story about management techniques to fraternize the incompatibles of personal fulfillment, profit maximization, and regional advantage. But for every normative term that animates her analysis (labor mobility, freedom of contract, innovation, creative or constructive destruction) there is a shadow term (precarity, exploitation, disruption, waste) that goes unexplored. I want to surface a few of these terms, and explore the degree to which they limit the scope or force of Lobel’s message. My worry is that managers will be receptive to the book not because they want talent to be free in the sense of “free speech,” but rather, in the sense of “free beer:” interchangeable cog(nitive unit)s desperately pitching themselves on MTurk and TaskRabbit.
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November 13, 2013 at 9:59 am Posted in: Book Reviews, Corporate Law, Employment Law, Intellectual Property, Philosophy of Social Science, Political Economy, Sociology of Law, Symposium (Talent Wants to be Free) Print This Post No Comments
posted by Ari Waldman
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.
posted by Ari Waldman
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.
posted by UCLA Law Review
Volume 61, Discourse Discourse
|The View From Below: Public Interest Lawyering, Social Change, and Adjudication||Douglas NeJaime||182|
posted by Ari Waldman
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.
posted by Dave Hoffman
My university (Temple) has an interesting set of new IRB guidelines. Essentially, Temple’s IRB (for all subjects) is now requiring department head sign-off for all protocols:
“In addition to the PI, every individual listed on the approval route on an IRB submission is required to approve the submission before it can reach the IRB for review. The electronic approval takes the place of a hard copy signature. Department Heads and all research personnel are required to approval Initial Submissions. Individuals can also be manually added to the approval route. Everyone listed on the approval route must view and approve the submission in order for it to reach the IRB. Please see the instructions for Providing Approval in eRA on the IRB’s website.”
When I inquired as to why this regulation was required, I was told that department heads knew the financial health & needs of the institution, and would therefore be able to tell if particular projects’ execution was financially possible. Because department heads are best positioned to know if research is too expensive (and consequently that human subjects wouldn’t be cared for), IRB review will be denied if they refuse to sign the application. The IRB acknowledged that the regulation was not required by HHS regulations or the common rule, but was essentially a way to improve the quality of the University’s research.
To me this is a deeply problematic requirement. Academic freedom is a slogan which almost always signifies rent seeking. But here, there are significant risks that the IRB could be used as a way to cloak gamesmanship inside of departments. Imagine that you are on the outs from your boss. She or he can now simply refuse you the right to do research by stating that the department can’t support it. The IRB enforces that refusal, with its full array of punitive sanctions. What avenue of relief could you possibly have, apart from an incredibly cumbersome university grievance process, or a First Amendment lawsuit against the University?
Ultimately I dropped my objections to the regulation and got sign-off, in large part because I trust the powers that be. Also, who wants to poke the bear? But I thought I’d throw it out there to see whether any of you have seen similar regulations, and whether (or not) they’ve been challenged successfully.
posted by Ari Waldman
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.
posted by Michael Simkovic
(Reposted from Brian Leiter’s Law School Reports)
BT Claim: We could have used more historical data without introducing continuity and other methodological problems
BT quote: “Although SIPP was redesigned in 1996, there are surveys for 1993 and 1992, which allow continuity . . .”
Response: Using more historical data from SIPP would likely have introduced continuity and other methodological problems
SIPP does indeed go back farther than 1996. We chose that date because it was the beginning of an updated and revitalized SIPP that continues to this day. SIPP was substantially redesigned in 1996 to increase sample size and improve data quality. Combining different versions of SIPP could have introduced methodological problems. That doesn’t mean one could not do it in the future, but it might raise as many questions as it would answer.
Had we used earlier data, it could be difficult to know to what extent changes to our earnings premiums estimates were caused by changes in the real world, and to what extent they were artifacts caused by changes to the SIPP methodology.
Because SIPP has developed and improved over time, the more recent data is more reliable than older historical data. All else being equal, a larger sample size and more years of data are preferable. However, data quality issues suggest focusing on more recent data.
If older data were included, it probably would have been appropriate to weight more recent and higher quality data more heavily than older and lower quality data. We would likely also have had to make adjustments for differences that might have been caused by changes in survey methodology. Such adjustments would inevitably have been controversial.
Because the sample size increased dramatically after 1996, including a few years of pre 1996 data would not provide as much new data or have the potential to change our estimates by nearly as much as Professor Tamanaha believes. There are also gaps in SIPP data from the 1980s because of insufficient funding.
These issues and the 1996 changes are explained at length in the Survey of Income and Program Participation User’s Guide.
Changes to the new 1996 version of SIPP include:
Roughly doubling the sample size
This improves the precision of estimates and shrinks standard errors
Lengthening the panels from 3 years to 4 years
This reduces the severity of the regression to the median problem
Introducing computer assisted interviewing to improve data collection and reduce errors or the need to impute for missing data
Most government surveys topcode income data—that is, there is a maximum income that they will report. This is done to protect the privacy of high-income individuals who could more easily be identified from ostensibly confidential survey data if their incomes were revealed.
Because law graduates tend to have higher incomes than bachelor’s, topcoding introduces downward bias to earnings premiums estimates. Midstream changes to topcoding procedures can change this bias and create problems with respect to consistency and continuity.
Without going into more detail, the topcoding procedure that began in 1996 appears to be an improvement over the earlier topcoding procedure.
These are only a subset of the problems extending the SIPP data back past 1996 would have introduced. For us, the costs of backfilling data appear to outweigh the benefits. If other parties wish to pursue that course, we’ll be interested in what they find, just as we hope others were interested in our findings.
July 28, 2013 at 5:01 pm Tags: economic rec, Economic Value of a Law Degree, economics Posted in: Accounting, Blogging, Corporate Finance, Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Philosophy of Social Science, Sociology of Law Print This Post No Comments
posted by Frank Pasquale
First Monday recently published an issue on social media monopolies. These lines from the introduction by Korinna Patelis and Pavlos Hatzopolous are particularly provocative:
A large part of existing critical thinking on social media has been obsessed with the concept of privacy. . . . Reading through a number of volumes and texts dedicated to the problematic of privacy in social networking one gets the feeling that if the so called “privacy issues” were resolved social media would be radically democratized. Instead of adopting a static view of the concept . . . of “privacy”, critical thinking needs to investigate how the private/public dichotomy is potentially reconfigured in social media networking, and [the] new forms of collectivity that can emerge . . . .
I can even see a way in which privacy rights do not merely displace, but actively work against, egalitarian objectives. Stipulate a population with Group A, which is relatively prosperous and has the time and money to hire agents to use notice-and-consent privacy provisions to its advantage (i.e., figuring out exactly how to disclose information to put its members in the best light possible). Meanwhile, most of Group B is too busy working several jobs to use contracts, law, or agents to its advantage in that way. We should not be surprised if Group A leverages its mastery of privacy law to enhance its position relative to Group B.
Better regulation would restrict use of data, rather than “empower” users (with vastly different levels of power) to restrict collection of data. As data scientist Cathy O’Neil observes:
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posted by Frank Pasquale
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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posted by Deven Desai
Gamification? Is that a word? Why yes it is, and Kevin Werbach and Dan Hunter want to tell us what it means. Better yet, they want to tell us how it works in their new book For the Win: How Game Thinking Can Revolutionize Your Business (Wharton Press). The authors get into many issues starting with a refreshing admission that the term is clunky but nonetheless captures a simple, powerful idea: one can use game concepts in non-game contexts and achieve certain results that might be missed. As they are careful to point out, this is not game theory. This is using insights from games, yes video games and the like, to structure how we interact with a problem or goal. I have questions about how well the approach will work and potential downsides (I am after all a law professor). Yet, the authors explore cases where the idea has worked, and they address concerns about where the approach can fail. I must admit I have only an excerpt so far. But it sets out the project while acknowledging possible objections that popped to mind quite well. In short, I want to read the rest. Luckily the Wharton link above or if you prefer Amazon Kindle are both quite reasonably priced. (Amazon is less expensive).
If you wonder about games, play games, and maybe have thought what is with all this badging, point accumulation, leader board stuff at work (which I did while I was at Google), this book looks to be a must read. And if you have not encountered these changes, I think you will. So reading the book may put you ahead of the group in understanding what management or companies are doing to you. The book also sets out cases and how the process works, so it may give you ideas about how to use games to help your endeavor and impress your manager. For the law folks out there, I think this area raises questions about behavioral economics and organizations that will lay ahead. In short, the authors have a tight, clear book that captures the essence of a movement. That alone merits a hearty well done.
posted by Dave Hoffman
I agree with some of what’s said in this new essay about credentialing and the educational system. It’s worth reading. But the author makes a claim about “law” which I don’t quite accept:
“Today, we take it for granted that practicing medicine or law requires years of costly credentialing in unrelated fields. In the law, the impact of all this “training” is clear: it supports a legal system that is overly complicated and outrageously expensive, both for high-flying corporate clients who routinely overpay and for small-time criminal defendants who, in the overwhelming majority of cases, can’t afford to secure representation at all (and must surrender their fate to local prosecutors, who often send them to prison). But just as a million-dollar medical training isn’t necessary to perform an abortion, routine legal matters could easily, and cheaply, be handled by noninitiates.”
There is one statement here that is undeniably true: many people who would like to access legal services can not afford to do so. But the rest is not fully thought out.
Literally any vaguely competent human can draft a will. The relevant question is: what percentage of “routine” wills turn out to be complex down the line, such that lay drafting which doesn’t anticipate problems creates a joojooflop and expensive heartache? Does anyone actually know the answer to this question? I don’t. And given that I don’t have a sense of the relevant baseline risks, I would vastly prefer to have a will drafted by a competent T&E attorney than drafting it myself; and I’d prefer to draft it myself than take it from a form book or a “noninitiate.” That doesn’t make me a credentialist snob: that makes me risk averse. Indeed: it should be obvious that merely because many people can’t afford wills drafted by lawyers doesn’t mean that experienced nonlawyer will drafting is just as good as legally trained drafting. (It might or not be – the question susceptible to empirical investigation.)
posted by Dave Hoffman
Over at the Cultural Cognition Blog, I’ve written a bit about some new evidence about partisan division. The headline news is that partisanship is a better predictor than it used to be of cultural division. But as I read the data, the undernews is that we’re actually no more divided than we used to be on common ideological and cultural measures. Given all that’s happened in the last quarter-century – including media differentiation, the digital revolution and 24-hour news cycle, more bowling alone, sprawl – isn’t that kind of a huge deal? The fact that partisan self-identification is a better predictor of cultural views than it used to be simply means that the parties are cohering better. That might be bad for the functioning of our particular form of representative government, but it doesn’t mean that we’re drifting apart as a country.
posted by Ramesh Subramanian
Thank you, Samir Chopra and Lawrence White for writing this extremely thought-provoking book! Like Sonia Katyal, I too am particularly fascinated by the last chapter – personhood for artificial agents. The authors have done a wonderful job of explaining the legal constructs that have defined, and continue to define the notion of according legal personality to artificial agents.
The authors argue that “dependent” legal personality, which has already been accorded to entities such as corporations, temples and ships in some cases, could be easily extended to cover artificial agents. On the other hand, the argument for according “independent” legal personality to artificial agents is much more tenuous. Many (legal) arguments and theories exist which are strong impediments to according such status. The authors categorize these impediments as competencies (being sui juris, having a sensitivity to legal obligations, susceptibility to punishment, capability for contract formation, and property ownership and economic capacity) and philosophical objections (i.e. artificial agents do not possess Free Will, do not enjoy autonomy, or possess a moral sense, and do not have clearly defined identities), and then argue how they might be overcome legally.
Notwithstanding their conclusion that the courts may be unable or unwilling to take more than a piecemeal approach to extending constitutional protections to artificial agents, it seems clear to me the accordance of legal personality – both dependent and, to a lesser extent independent, is not too far into the future. In fact, the aftermath of Gillick v West Norfolk and Wisbech Area Health Authority has shown that various courts have gradually come to accept that dependent minors “gradually develop their mental faculties,” and thus can be entitled to make certain “decisions in the medical sphere.”
We can extend this argument to artificial agents which are no longer just programmed expert systems, but have gradually evolved into being self-correcting, learning and reasoning systems, much like children and some animals. We already know that even small children exhibit these notions. So do chimpanzees and other primates. Stephen Wise has argued that some animals meet the “legal personhood” criteria, and should therefore be accorded rights and protections. The Nonhuman Rights Project founded by Wise is actively fighting for legal rights for non-human species. As these legal moves evolve and shape common law, the question arises as to when (not if) artificial agents will develop notions of “self,” “morals” and “fairness,” and thus on that basis be accorded legal personhood status?
And when that situation arrives, what are the ramifications that we should further consider? I believe that three main “rights” that would have to be considered are: Reproduction, Representation, and Termination. We already know that artificial agents (and Artificial Life) can replicate themselves and “teach” the newly created agents. Self-perpetuation can also be considered to be a form of representation. We also know that under certain well defined conditions, these entities can self-destruct or cease to operate. But will these aspects gain the status of rights accorded to artificial agents?
These questions lead me to the issues which I personally find fascinating: end-of-life decisions extended to artificial agents. For instance, what would be the role of aging agents of inferior capabilities that nevertheless exist in a vast global network? What about malevolent agents? When, for instance, would it be appropriate to terminate an artificial agent? What would be the laws that would handle situations like this, and how would such laws be framed? While these questions seem far-fetched, we are already at a point where numerous viruses and “bots” pervade the global information networks, learn, perpetuate, “reason,” make decisions, and continue to extend their lives and their capacity to affect our existence as we know it. So who would be the final arbiter of end-of-life decisions in such cases? In fact, once artificial agents evolve and gain personhood rights, would it not be conceivable that we would have non-human judges in the courts?
Are these scenarios too far away for us to worry about, or close enough? I wonder…
February 14, 2012 at 6:00 pm Tags: A Legal Theory for Autonomous Artificial Agents, artificial agents Posted in: Bioethics, Civil Rights, Courts, Sociology of Law, Symposium (Autonomous Artificial Agents), Technology, Uncategorized Print This Post No Comments
posted by Sarah Waldeck
This week Governor Pat Quinn of Illinois signed legislation that will allow the City of Chicago to put speed cameras in the one-eighth mile buffer zones around schools and parks. As the Chicago Tribune has reported, the City has more than 600 public schools and only slightly fewer parks, so this legislation gives Chicago the authority to cover roughly half of its territory with speed cameras. The City says it will concentrate on the approximately 80 areas where the need for speed enforcement is particularly acute.
Although Quinn signed the legislation, the cameras are the handiwork of Mayor Rahm Emanuel. The Mayor says he developed the plan after school officials and the police expressed concerns about public safety. Emanuel’s critics—and he has a lot of them—paint the legislation as being more about revenue generation than public safety. Drivers who go more than 5 miles over the speed limit will be fined $50 and drivers who go more than 11 miles over the limit will be fined $100. The Mayor has said repeatedly that he doesn’t care if the cameras generate any revenue; the legislation is all about keeping kids safe.
Let’s take the Mayor at his word and assume that his only goal is to make Chicago safer. What would traffic engineers and behavioral economists advise? They would tell him to install dynamic speed displays, which announce the posted speed limit and display in large digital numbers the speed of each driver going past. One of the first experiments with these displays took place in school zones in suburban Los Angeles in 2003. Drivers slowed down by an average of 14 percent and in some zones the average speed dropped below the limit. The use of dynamic speed displays has since become commonplace and research has consistently shown that they cause drivers to slow down by about 10 percent for several miles.
These displays upend the usual approach to traffic enforcement because there is no penalty for displaying a speed that is higher than the posted limit. Instead, the display works by creating a feedback loop: (1) sensors instantly capture and relay information about the driver’s speed; (2) the large public display of numbers carries real punch because few people want to be perceived as reckless or careless; and (3) the driver has immediate opportunity to slow down by simply easing up on the gas. This feedback loop is so effective that traffic safety experts have concluded it does a better job of changing driving habits than techniques that depend on police issuing tickets. (You can read about dynamic speed displays and feedback loops more generally here.)
Chicago’s speed cameras will be accompanied by highly visible signage, so time will tell whether the combination of signage and speed cameras make drivers slow down in the short term and change their driving habits in the long term. If I were advising a mayor whose priority was public safety, however, I’d recommend the use of dynamic speed displays that provide effective feedback to drivers in the moments before they enter a school zone, and not cameras whose feedback comes in the mail several days after the driver already has sped by a school.
posted by Frank Pasquale
Social sorting is big business. Bosses and bankers crave “predictive analytics:” ways of deciding who will be the best worker, borrower, or customer. Our economy is less likely to reward someone who “builds a better mousetrap” than it is to fund a startup which will identify those most likely to buy a mousetrap. The critical resource here is data, the fossil fuel of the digital economy. Privacy advocates are digital environmentalists, worried that rapid exploitation of data either violates moral principles or sets in motion destructive processes we only vaguely understand now.*
Start-up fever fuels these concerns as new services debut and others grow in importance. For example, a leader at Lenddo, “the first credit scoring service that uses your online social network to assess credit,” has called for “thousands of engineers [to work] to assess creditworthiness.” We all know how well the “quants” have run Wall Street—but maybe this time will be different. His company aims to mine data derived from digital monitoring of relationships. ITWorld headlined the development: “How Facebook Can Hurt Your Credit Rating”–”It’s time to ditch those deadbeat friends.” It also brought up the disturbing prospect of redlined portions of the “social graph.”
There’s a lot of value in such “news you can use” reporting. However, I think it misses some problematic aspects of a pervasively evaluated and scored digital world. Big data’s fans will always counter that, for every person hurt by surveillance, there’s someone else who is helped by it. Let’s leave aside, for the moment, whether the game of reputation-building is truly zero-sum, and the far more important question of whether these judgments are fair. The data-meisters’ analytics deserve scrutiny on other grounds.
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posted by Frank Pasquale
The Occupy Wall Street protests continue to grow, and to gain support from public intellectuals. Joe Stiglitz, Anne Marie Slaughter, and Paul Krugman are the latest luminaries to praise the cause. The movement has also provoked derision. Let’s consider the latest Norquist/Limbaugh memes as the protest nears the one-month mark:
1) “They’re just spoiled hippies who can’t get a job.” A quick glance at the “We are the 99%” tumblr could easily dispel this notion. The economic suffering in this country is deep and broad. As one news story put it, “one in three Americans would be unable to make their mortgage or rent payment beyond one month if they lost their job.” Even if the most down-and-out people are too poor or busy to get to Wall Street (or the hundreds of other actions now taking place), many of them think of the OWS crowd as speaking for them.
There is so much needless suffering going on now, and so much wealth accumulating at the very top. It is hard to understand how critics dismiss the protesters so cavalierly. I used to find the Biblical passage about God hardening Pharaoh’s heart one of the more mysterious parts of the Book of Exodus; now I feel like I’m witnessing it firsthand.
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posted by Daniel Solove
Lior Strahilevitz, Deputy Dean and Sidley Austin Professor of Law at the University of Chicago Law School recently published a brilliant new book, Information and Exclusion (Yale University Press 2011). Like all of Lior’s work, the book is creative, thought-provoking, and compelling. There are books that make strong and convincing arguments, and these are good, but then there are the rare books that not only do this, but make you think in a different way. That’s what Lior achieves in his book, and that’s quite an achievement.
I recently had the opportunity to chat with Lior about the book.
Daniel J. Solove (DJS): What drew you to the topic of exclusion?
Lior Jacob Strahilevitz (LJS): It was an observation I had as a college sophomore. I lived in the student housing cooperatives at Berkeley. Some of my friends who lived in the cooperatives told me they felt morally superior to people in the fraternities and sororities because the Greek system had an elaborate, exclusionary rush and pledge process. The cooperatives, by contrast, were open to any student. But as I visited friends who lived in the various cooperative houses, the individual houses often seemed no more heterogeneous than the fraternities and sororities. That made me curious. It was obvious that the pledging and rushing process – formal exclusion – created homogeneity in the Greek system. But what was it that was creating all this apparent homogeneity in a cooperative system that was open to everyone? That question was one I kept wondering about as a law student, lawyer, and professor.
That’s why page 1 of the book begins with a discussion of exclusion in the Greek system. I start with really accounts of the rush process by sociologists who studied the proxies that fraternity members used to evaluate pledges in the 1950s (attire, diction, grooming, firm handshakes, etc.) The book then brings us to the modern era, when fraternity members peruse Facebook profiles that provide far more granular information about the characteristics of each pledge. Proxies still matter, but the proxies are different, and those differences alter the ways in which rushing students behave and fraternities exclude.
DJS: What is the central idea in your book?
LJS: The core idea is that asymmetric information largely determines which mechanisms are used to exclude people from particular groups, collective resources, and services. When the person who controls a resource knows a lot about the people who wish to use it, she will make decisions about who gets to access it. Where she lacks that information, she’ll develop a strategy that forces particular groups to exclude themselves from the resource, based on some criteria. There’s a historical ebb and flow between these two sorts of strategies for exclusion, but we seem to be in a critical transition period right now thanks to the decline of practical obscurity in the information age.
posted by Frank Pasquale
The US faced two great crises during the first decade of the 21st century: the attacks of September, 2001, and the meltdown of its financial system in September, 2008. In the case of 9/11, the country reluctantly concluded that it had made a category mistake about the threat posed by terrorism. The US had relied on cooperation among the Federal Aviation Administration, local law enforcement, and airlines to prevent hijacking. Assuming that, at most, a hijacked or bombed airplane would kill the passengers aboard the plane, government officials believed that national, local, and private authorities had adequate incentives to invest in an optimal level of deterrence. Until the attack occurred, no high official had deeply considered and acted on the possibility that an airplane itself could be weaponized, leading to the deaths of thousands of civilians.
After the attack, a new Department of Homeland Security took the lead in protecting the American people from internal threats, while existing intelligence agencies refocused their operations to better monitor internal threats to domestic order. The government massively upgraded its surveillance capabilities in the search for terrorists. DHS collaborated with local law enforcement officials and private critical infrastructure providers. Federal agencies, including the Department of Homeland Security, gather information in conjunction with state and local law enforcement officials in what Congress has deemed the “Information Sharing Environment” (ISE), held together by information “fusion centers” and other hubs. My co-blogger Danielle Citron and I wrote about some of the consequences in an article that recently appeared in the Hastings Law Journal:
In a speech at the Washington National Cathedral three days after 9/11, then-President George W. Bush proclaimed that America’s “responsibility to history is already clear[:] . . . [to] rid the world of evil.” For the next seven years, the Bush administration tried many innovations to keep that promise, ranging from preemptive war in Iraq to . . . changes in law enforcement and domestic intelligence . . . Fusion centers are a lasting legacy of the Administration’s aspiration to “eradicate evil,” a great leap forward in both technical capacity and institutional coordination. Their goal is to eliminate both the cancer of terror and lesser diseases of the body politic.
September 12, 2011 at 2:59 pm Posted in: Current Events, Cyberlaw, Philosophy of Social Science, Politics, Privacy, Privacy (Law Enforcement), Privacy (National Security), Sociology of Law Print This Post 9 Comments