#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, [...]]]> In the spirit of the excellent colloquy here about Marvin’s thinking on First Amendment architectures, I bring up this news item: Arizona State University blocked both Web access to, and e-mail from, the change.org Web site. ASU students had begun a petition demanding that the university reduce tuition. The university essentially made three claims as to why it did so (below, in order of increasing stupidity):

1. It was a technical mistake;
2. Change.org was spamming ASU; and
3. ASU needs to “protect the use of our limited and valuable network resources for legitimate academic, research and administrative uses.”

#1 and #2 run together. If spam is the problem, you don’t need to block access to the Web site. However, if you are concerned that students are going to read the petition, and sign it, you do need to block access to the Web site.

For #2, sorry, ASU, this isn’t spam. Spam is unsolicited bulk commercial e-mail. Change.org is, allegedly, sending unsolicited political e-mail. And that’s protected by the First Amendment – see, for example, the Virginia Supreme Court’s analysis of that state’s anti-spam law that covered political messages. Potential political spammers have a sharp disincentive to fill recipient’s inboxes – it’s a sure-fire way to annoy them into opposing your position.

For #3, ASU doesn’t get to determine what academic and research uses are “legitimate.” If they throttle P2P apps, that’s fine. If they limit file sizes for attachments, no problem. But deciding that the message from Change.org is not “legitimate” is classic, and unconstitutional, viewpoint discrimination.

This looks like censorship. I think it’s more likely to be stupidity: someone in ASU’s IT department decided to block these messages as spam, and to filter outbound Web requests to the site contained within those messages. But: with great power over the network comes great responsibility. Well-intentioned constitutional violations are still unlawful. It would also help if ASU’s spokesperson simply admitted the mistake rather than engaging in idiotic justification.

As I mention in Orwell’s Armchair, public actors are increasingly important sources of Internet access. But when ASU and other public universities take on the role of ISP, they need to remember that they are not AOL: their technical decisions are constrained not merely by tech resources, but by our commitment to free speech. Let’s hope the Sun Devils cool off on the filtering…

Cross-posted at Info/Law.

There is an introduction [...]]]> On February 14-16, we will host an online symposium on A Legal Theory for Autonomous Artificial Agents, by Samir Chopra and Laurence White. Given the great discussions at our previous symposiums for Tim Wu’s Master Switch  and Jonathan Zittrain’s Future of the Internet, I’m sure this one will be a treat.  Participants will include Ken Anderson, Ryan Calo, James Grimmelmann, Sonia Katyal, Ian Kerr, Andrea Matwyshyn, Deborah DeMott, Paul Ohm,  Ugo Pagallo, Lawrence Solum, Ramesh Subramanian and Harry Surden.  Chopra will be reading their posts and responding here, too.  I discussed the book with Chopra and Grimmelmann in Brooklyn a few months ago, and I believe the audience found fascinating the many present and future scenarios raised in it.  (If you’re interested in Google’s autonomous cars, drones, robots, or even the annoying little Microsoft paperclip guy, you’ll find something intriguing in the book.)

There is an introduction to the book below the fold.  (Chapter 2 of the book was published in the Illinois Journal of Law, Technology and Policy, and can be found online at SSRN).  We look forward to hosting the discussion!

Social and economic interactions today increasingly feature a new category of being: the artificial agent. It buys and sells goods; determines eligibility for legal entitlements like healthcare benefits; processes applications for visas and credit cards; collects, acquires and processes financial information; trades on stock markets; and so on. We use language inflected with intentions in describing our interactions with an artificial agent, as when we say “the shopping cart program wants to know my shipping address.” This being’s competence at settling into our lives, in taking on our tasks, leads us to attribute knowledge and motivations, and to delegate responsibility, to it. Its abilities, often approximating human ones and sometimes going beyond them, make it the object of fear and gratitude: it might spy on us, or it might relieve us of tedium and boredom.

The advances in the technical sophistication and autonomous functioning of these systems represent a logical continuation of our social adoption of technologies of automation. Agent programs represent just one end of a spectrum of technologies that automate human capacities and abilities, extend our cognitive apparatus, and become modeled enhancements of ourselves. More than ever before, it is coherent to speak of computer programs and hardware systems as agents working on our behalf. The spelling checker that corrects this page as it is written is a lexicographic agent that aids in our writing, as much an agent as the automated trading system of a major Wall Street brokerage, and the PR2 robot, a prototype personal robotic assistant (Markoff 2009). While some delegations of our work to such agents are the oft-promised ones of alleviating tedious labor, others are ethically problematic, as in robots taking on warfare roles (Singer 2009). Yet others enable a richer, wider set of social and economic interconnections in our networked society, especially evident in e-commerce (Papazoglu 2001).

As we increasingly interact with these artificial agents in unsupervised settings, with no human mediators, their seeming autonomy and increasingly sophisticated functionality and behavior, raises legal and philosophical questions. For as the number of interactions mediated by artificial agents increase, as they  become actors in literal, metaphorical and legal senses, it is ever more important to understand, and do justice to, the artificial agent’s role within our networks of social, political and economic relations. What is the standing of these entities in our socio-legal framework? What is the legal status of the commercial transactions they enter into? What legal status should artificial agents have? Should they be mere things, tools, and instrumentalities?  Do they have any rights, duties, obligations? What are the legal strategies to make room for these future residents of our polity and society? The increasing sophistication, use, and social embedding of computerized agents makes the coherent answering of older questions raised by mechanical automation ever more necessary.

Carving out a niche for a new category of legal actor is a task rich with legal and philosophical significance. The history of jurisprudence addressing doctrinal changes in the law suggests legal theorizing to accommodate artificial agents will inevitably find its pragmatic deliberations colored by philosophical musings over the nature and being of these agents. Conversely, the accommodation, within legal doctrines, of the artificial agent, will influence future philosophical theorizing about such agents, for such accommodation will invariably include conceptual and empirical assessments of their capacities and abilities. This interplay between law and philosophy is not new: philosophical debates on personhood, for instance, cannot proceed without an acknowledgement of the legal person, just as legal discussions on tort liability are grounded in a philosophical understanding of responsibility and causation.

This book seeks to advance interdisciplinary legal scholarship in answer to the conundrums posed by this new entity in our midst. Drawing upon both contemporary and classical legal and philosophical analysis, we attempt to develop a prescriptive legal theory to guide our interactions with artificial agents, whether as users or operators entering contracts, acquiring knowledge or causing harm through agents, or as persons to whom agents are capable of causing harm in their own right. We seek to apply and extend existing legal and philosophical theories of agency, knowledge attribution, liability, and personhood, to the many roles artificial agents can be expected to play and the legal challenges they will pose while so doing. We emphasize legal continuity, while seeking to refocus on deep existing questions in legal theory.

The artificial agent is here to stay; our task is to accommodate it in a manner that does justice to our interests and its abilities.

Listening to the insider discussions and industry reporting about online marketing provides a numbing sense of false comfort.  But every so often, we go outside the bubble and hear civilians talking about what we do.  I’m sure most of us have had someone at a party or family gathering share their ‘creeped out’ moment;  that instance where they finally saw clearly that somehow they were being ‘followed’ online.   Other times, they offer us largely unformed general concerns about online privacy: they don’t really have [...]]]> Over at the Business Insider, Doug Weaver has a terrific review of our guest blogger Joe Turow’s new book The Daily You, demonstrating its practical importance to people in the field like Weaver as well as to policymakers and scholars.Here’s the review:

Listening to the insider discussions and industry reporting about online marketing provides a numbing sense of false comfort.  But every so often, we go outside the bubble and hear civilians talking about what we do.  I’m sure most of us have had someone at a party or family gathering share their ‘creeped out’ moment;  that instance where they finally saw clearly that somehow they were being ‘followed’ online.   Other times, they offer us largely unformed general concerns about online privacy: they don’t really have a sense of what’s going on but they instinctively know they don’t like it.  And once in a great while you’ll hear from someone who’s really done their homework and brings crystal clarity to the issue from the consumer point of view.

That moment came for me when I stumbled on an NPR radio interview with Joseph Turow, author of “The Daily You: How the New Advertising Industry is Defining Your Identity and Your Worth.”  After using up my ten minute commute, I found myself sitting my car in the parking lot of my office for another 30 minutes just listening to this guy.  It was kind of like hearing someone talk about you in a bathroom when they don’t know you’re in one of the stalls.  Except they’re totally getting it right.  Turow, an associate dean at the Annenberg Communication school at Penn, has done a lot of homework.  The book is detailed and rigorous, but also extremely accessible to the curious consumer.  While it’s probably not going to sell millions of copies, I believe it’s going to be a hugely influential and important book for several reasons.

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. [...]]]> Cybersecurity is in the news: a network intrusion allegedly interfered with railroad signals in the Northwest in December; the Obama administration refused to support the Stop Online Piracy Act due to worries about interfering with DNSSEC; and the GAO concluded that the Department of Homeland Security is making things worse by oversharing. So, I’m fortunate that the Minnesota Law Review has just published the final version of Conundrum (available on SSRN), in which I argue that we should take an information-based approach to cybersecurity:

Cybersecurity is a conundrum. Despite a decade of sustained attention from scholars, legislators, military officials, popular media, and successive presidential administrations, little if any progress has been made in augmenting Internet security. Current scholarship on cybersecurity is bound to ill-fitting doctrinal models. It addresses cybersecurity based upon identification of actors and intent, arguing that inherent defects in the Internet’s architecture must be remedied to enable attribution. These proposals, if adopted, would badly damage the Internet’s generative capacity for innovation. Drawing upon scholarship in economics, animal behavior, and mathematics, this Article takes a radical new path, offering a theoretical model oriented around information, in distinction to the near-obsession with technical infrastructure demonstrated by other models. It posits a regulatory focus on access and alteration of data, and on guaranteeing its integrity. Counterintuitively, it suggests that creating inefficient storage and connectivity best protects user capabilities to access and alter information, but this necessitates difficult tradeoffs with preventing unauthorized interaction with data. The Article outlines how to implement inefficient information storage and connectivity through legislation. Lastly, it describes the stakes in cybersecurity debates: adopting current scholarly approaches jeopardizes not only the Internet’s generative architecture, but also key normative commitments to free expression on-line.

Conundrum, 96 Minn. L. Rev. 584 (2011).

Cross-posted at Info/Law.

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied [...]]]> The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, [...]]]> It may seem strange in a week where Megaupload’s owners were arrested and SOPA / PROTECT IP went under, but cybersecurity is the most important Internet issue out there. Examples? Chinese corporate espionage. Cyberweapons like Stuxnet. Anonymous DDOSing everyone from the Department of Justice to the RIAA. The Net is full of holes, and there are a lot of folks expert in slipping through them.

I argue in a forthcoming paper, Conundrum, that cybersecurity can only be understood as an information problem. Conundrum posits that, if we’re worried about ensuring access to critical information on-line, we should make the Net less efficient – building in redundancy. But for cybersecurity, information is like the porridge in Goldilocks: you can’t have too much or too little. For example, there was recent panic that a water pump burnout in Illinois was the work of cyberterrorists. It turned out that it was actually the work of a contractor for the utility who happened to be vacationing in Russia. (This is what you get for actually answering your pager.)

The “too little” problem can be described via two examples. First, prior to the attacks of September 11, 2001, the government had information about some of the hijackers, but was impeded by lack of information-sharing and by IT systems that made such sharing difficult. Second, denial of service attacks prevent Internet users from reaching sites they seek – a tactic perfected by Anonymous. The problem is the same: needed information is unavailable. I think the solution, as described in Conundrum, is:

increasing the inefficiency with which information is stored. The positive aspects of both access to and alteration of data emphasize the need to ensure that authorized users can reach, and modify, information. This is more likely to occur when users can reach data at multiple locations, both because it increases attackers’ difficulty in blocking their attempts, and because it provides fallback options if a given copy is not available. In short, data should reside in many places.

But there is also the “too much” problem. This is exemplified by the water pump fiasco: after 9/11, the federal government, including the Department of Homeland Security, began a massive information-sharing effort, such as through Fusion Centers. The difficulty is that the Fusion Centers, and other DHS projects, are simply firehosing information onto companies who constitute “critical infrastructure.” Much of this information is repetitive or simply wrong – as with the water pump report. Bad information can be worse than none at all: it distracts critical infrastructure operators, breeds mistrust, and consumes scarce security resources. The pendulum has swung too far the other way: from undersharing to oversharing. Finding the “just right” solution is impossible; this is a dynamic environment with constantly changing threats. But the government hasn’t yet made the effort to synthesize and analyze information before sounding the alarm. It must, or we will pay the price of either false alarms, or missed ones.

(A side note: I don’t put much stock in which federal agency takes the lead on cybersecurity – there are proposals for the Department of Defense, or the Department of Energy, among others – but why has the Obama administration delegated responsibility to DHS? Having the TSA set Internet policy hardly seems sensible. Beware of Web-based snow globes!)

Cross-posted at Info/Law.

To get a better sense of why the “animals” may be complaining, be sure to listen to Mike Daisey’s extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here’s one excerpt:

N-hexane is an iPhone screen cleaner. It’s great because it evaporates a little bit faster than alcohol does, which means [...]]]> Among the billionaires at the vanguard of global capital, Terry Gou of Hon Hai (also known as Foxconn) deserves special recognition for his honesty. “Hon Hai has a workforce of over one million worldwide and as human beings are also animals, to manage one million animals gives me a headache,” said the chairman. His company has also begun building “an empire of robots” to replace a whining workforce.

To get a better sense of why the “animals” may be complaining, be sure to listen to Mike Daisey’s extraordinary report on his trip to Shenzhen, home of a massive Foxconn factory. Here’s one excerpt:

N-hexane is an iPhone screen cleaner. It’s great because it evaporates a little bit faster than alcohol does, which means you can run the production line even faster and try to keep up with the quotas. The problem is that n-hexane is a potent neurotoxin, and all these people have been exposed. Their hands shake uncontrollably. Most of them can’t even pick up a glass.

I talk to people whose joints in their hands have disintegrated from working on the line, doing the same motion hundreds and hundreds of thousands of times. It’s like carpal tunnel on a scale we can scarcely imagine. And you need to know that this is eminently avoidable. If these people were rotated monthly on their jobs, this would not happen.

But that would require someone to care. That would require someone at Foxconn and the other suppliers to care. That would require someone at Apple and Dell and the other customers to care. Currently no one in the ecosystem cares enough to even enforce that. And so when you start working at 15 or 16, by the time you are 26, 27, your hands are ruined. And when they are truly ruined, once they will not do anything further, you know what we do with a defective part in a machine that makes machine. We throw it away.

When workers are already treated as machines, perhaps their replacement by robots should be a cause for celebration. But the question then becomes: what do the displaced do for a living? Is there an alternative to exploitation?

Writers in the more rarefied precincts of technology studies tend to praise the fading boundaries between man, machine, and beast. However, it’s by no means a foregone conclusion that animals’ interests will be vindicated by the legal order, or robots treated with the simulacrum of respect that their simulacrum of humanity merits. To the extent the bulk of humanity is being recognized as “dependent rational animals,” those in authority tend to agree with Gou’s approach more than Alasdair MacIntyre’s.

Expect more speed-up in the developed world, as thought leaders decree that Americans must become “ten times more productive” if they dare demand wages ten times higher than those prevailing among the bullied and battered workers at the bottom of the supply chain. That’s our future, unless we can continue to rally around a sense of social minimums due to each person qua person. That motivates my interest in positive rights, and the fantastic discussion that followed this post on the topic. Richard Posner once said that “Most of us would think it downright offensive to give greater rights to . . . computers than to retarded people, upon a showing that . . . [they have] a greater cognitive capacity than a profoundly retarded human being.” Similarly, global priorities are troublingly scrambled if the construction of a “robot empire” is more pressing than the establishment of humane and secure living conditions for those whose work created the wealth that makes the “empire” possible.

Sharing the Gains from Automation

Of course, we all know the Davos elite’s response to such dark premonitions: get educated and hustle. The bard of flatworld, Tom Friedman, helpfully applauds “race to the bottom” online auctions for talent as one more “opportunity.” He ignores the vast literature on these systems’ potential to eviscerate the last vestiges of legal protections for employees. Friedman’s too busy jet-setting to worry about anyone’s slavery footprint. Thinking about how to get health care or housing to the newly “liberated” global workforce is beneath him.

While Friedman’s Panglossian outlook is au courant, this plain talk from FDR appears ever more a relic of the 20th century:

To those who say that our expenditures for Public Works and other means for recovery are a waste that we cannot afford, I answer that no country, however rich, can afford the waste of its human resources. Demoralization caused by vast unemployment is our greatest extravagance. Morally, it is the greatest menace to our social order. Some people try to tell me that we must make up our minds that for the future we shall permanently have millions of unemployed just as other countries have had them for over a decade.

What may be necessary for those countries is not my responsibility to determine. But as for this country, I stand or fall by my refusal to accept as a necessary condition of our future a permanent army of unemployed. On the contrary, we must make it a national principle that we will not tolerate a large army of unemployed and that we will arrange our national economy to end our present unemployment as soon as we can and then to take wise measures against its return. I do not want to think that it is the destiny of any American to remain permanently on relief rolls.

We can count on Friedman and other sophisticates to claim that times have changed. Globalization and automation have made many US jobs obsolete, they say. FDR may have had an answer to the first Great Depression, but not the second.

Is the answer really to put everyone on a hamster wheel of digital labor auctions and scrambles for gigs? I don’t think that’s correct. The question for a future economics (and morals) is how to set a baseline “social minimum” for workers in an utterly precarious and unpredictable work environment.

We have the resources to do this. There have been enormous gains in productivity over the past few decades. But the gains are going disproportionately to those at the very top. In the last economic expansion, the top 1 percent of U.S. households captured two-thirds of income gains. Yes, that’s 67% going to the top 1%. During the expansion, “the inflation-adjusted income of the top 1 percent of households grew more than ten times faster than the income of the bottom 90 percent of households.” The thought that the gains from automation will be shared equally among social classes is about as quaint as this personal robot envisioned in 1961.

Now I’m sure that, among that top 1%, there were some incredibly hard-working geniuses. Maybe some produced productivity gains that were actually worth 200 times more than what the average member of the bottom 99% contributed.* But power drives economic outcomes at least as often as productivity. Being able to slash all your workers’ pay (or work them to exhaustion in an 110-degree warehouse) simply because there is high unemployment is not exactly a valuable skill. Any fool could improve the bottom line at “a highly profitable company” by “demanding large-scale concessions” from its employees.

As a whole host of commentators have suggested, automation and technological change is threatening to wipe out whole industries, and to create far fewer jobs than they destroy. If software and hardware are making jobs in fields ranging from medicine to retail to science to law obsolete, it doesn’t make sense to continue giving the lion’s share of gains to the top 1%. A longshoremen’s union provided one model here:

In modern times, far more than other unions, the longshoreman have used technological change to their advantage. In 1960, the West Coast longshoremen agreed to far-reaching automation that replaced inefficient break-bulk cargo, which relied on hooks to move the cargo, with containerized cargo, which relies on cranes. In accepting automation, the union recognized that productivity would soar and the number of longshoremen needed would plunge; there are now 10,500 West Coast longshoremen, down from 100,000 in the 1950′s.

In exchange, the union received an unusual promise: port operators pledged to share the fruits of the new automation. Management promised all longshoremen a guaranteed level of pay, even if there was not work for everyone. Management also promised to share the wealth.

I found this example via Peter Frase, who offers the following gloss:

Basically, I think this is the deal we need to strike throughout the economy: automation (and relatedly, free trade) in exchange for compensating the displaced. However, the longshoremen were only able to achieve this victory because they occupy an unusual strategic choke-point in the economy. Shutting down the ports can cripple wide swaths of business, and this gives dockworkers a kind of negotiating leverage that isn’t available to, say, supermarket checkers. Which is why I think that the demand to compensate workers for technological change now has to be fought out politically and electorally, at the level of the state, rather than in the individual workplace. That’s the essence of my argument for the Basic Income: just like the dockworkers’ agreement, it ensures a level of pay whether or not there is work for everyone, only it generalizes the principle to encompass the whole economy.

You can dismiss that as utopianism if you like. Certainly the call for work reduction and the decoupling of income from employment has been made many times through the generations, from Paul LaFargue to André Gorz to Stanley Aronowitz. But the left does itself no favors by remaining in a defensive crouch, clinging to nostalgia for a political order that was rooted in a very different political economy–and which wasn’t even all that great to begin with. . . . The modern right provided an offensive strategy and a grand vision of what was wrong with the society that existed and what had to be done to turn it into something better: one market under god.

Pace economists like Goldin & Katz, we can’t guarantee livelihoods by promoting employment by educating everyone more. When robots are in line to replace some of the most highly educated people in society, that’s a recipe for disappointment. The real question is how to divide the spoils from societal advancement and automation fairly. Alperovitz and Daly have demonstrated that “up to 90 percent (and perhaps more) of current economic output derives not from individual ingenuity, effort, or investment but from our collective inheritance of scientific and technological knowledge: an inheritance we all receive as a “free lunch.”" The real motivation for calling workers “animals” or “machines” is to deny them their share in the the “universal destination of goods,” which “remains primordial, even if the promotion of the common good requires respect for the right to private property and its exercise.”

*My back of the envelope calculation: If there were 100 units of gain in this time period to be distributed to 100 people, that means that the top person would get 67 units. The 99 persons remaining would share the remaining 33. That average would be one third of a unit for each of the 99. That’s 200 times less than 67.

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, [...]]]> I have an essay on the SOPA controversy at the Boston Review. My main point: SOPA and its ilk are terrible, but its opponents should rally behind a constructive alternative to promote funding for arts and culture. As I argue there:

SOPA has spawned a powerful alliance of netizens to support basic principles of due process, free expression, and accountability online. But this battle is merely a prelude to a much more contested debate about the proper allocation of digital revenues. Like health care battles between providers and insurers, struggles between content owners and intermediaries will profoundly shape our common life. Stopping SOPA is only one small step toward preserving a fair, free, and democratic culture online.

For other Co-Op commentary, here’s Danielle Citron, Gerard Magliocca, and Derek Bambauer.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

1) An opinion piece in the Bergen Record, A Constitutional Right to Health Care.

2) A post at Madisonian, Internet Access as a Human Right.

I don’t think I have much to add to the already well-developed philosophical literature on positive rights, but I’d like to do more to bring this concept to an American audience.

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. [...]]]>

The Stanford Law Review Online has just published an Essay by Yale’s Stephen L. Carter entitled The Iraq War, the Next War, and the Future of the Fat Man. He provides a retrospective on the War in Iraq and discusses the ethical and legal implications of the War on Terror and “anticipatory self-defense” in the form of targeted killings going forward. He writes:

Iraq was war under the beta version of the Bush Doctrine. The newer model is represented by the slaying of Anwar al-Awlaki, an American citizen deemed a terror threat. The Obama Administration has ratcheted the use of remote drone attacks to unprecedented levels—the Bush Doctrine honed to rapier sharpness. The interesting question about the new model is one of ethics more than legality. Let us assume the principal ethical argument pressed in favor of drone warfare—to wit, that the reduction in civilian casualties and destruction of property means that the drone attack comports better than most other methods with the principle of discrimination. If this is so, then we might conclude that a just cause alone is sufficient to justify the attacks. . . . But is what we are doing truly self-defense?

Read the full article, The Iraq War, the Next War, and the Future of the Fat Man by Stephen L. Carter, at the Stanford Law Review Online.

Being there are not a whole lot of anthropologists of my ilk ( as I like to joke, I am an “arm chair anthropologist” who sits in front of her computer to study the high tech digerati of the west), I often get asked how or why I came to the study hackers, many people assuming that I had some hacker [...]]]> I would like to thank Danielle Citron for the invitation to pen some thoughts here on Concurring Opinions, and letting an anthropologist enter this legal arena. For my first post, I thought I would ease in slowly and give a taste of my work on hackers, geeks, and digital activism along with some of the themes and issues I will likely explore over the month.

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

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

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

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

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

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

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets [...]]]> Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

The ubiquity of the Internet, the permanence of posts, and the accessibility of data through search engines that do the looking for you mean that material that makes its way online can affect people’s lives over the long term and in profound ways. When you combine these features with the anonymity of posters and the difficulty of regulating the Internet, it means that people do things and say things on the Internet that they would not do or say in face to face conversations, or at least if they did there would be legal and moral consequences. The Internet as a medium provides a uniquely powerful and wide reaching mechanism with which to do bad things, yet relatively little work to date has acknowledged this aspect of it.

A growing feminist literature, ranging from the work of co-blogger Danielle Citron and that of Ann Bartow, to interventions in social web and other communities, also highlights these problems.

Some will say: if you don’t like a given online community, just join another one. But the ubiquity of options on the internet often amounts to little more than a mirage of choice. You may really like Google+ or Instagram and find it to be a more congenial environment than Facebook or Twitter. (As Liz Kelley put it, “Instagram is homey; Twitter is noisy.”) But just try dragging all your friends or followers to them.

Moreover, digital networks aren’t just leisure activities for many people. Public deliberation occurs on them. Entities like Klout have started a competitive game of influence accumulation with career implications. And they can be important forums for the development of identity, as Rob Horning explains:

The more effort we put into crafting identity online, the more material we supply to Facebook and search engines to associate with contextual ads and other marketing initiatives. For this organizational work we are compensated not with wages but with a stronger sense of self, measurable in hard, quantifiable terms. How many friends do you have? How often do they update? How many photos have you shared? How many times have they been looked at? And so on.

All of this is to say that as Web 2.0 has infiltrated our everyday life, it has transformed our habitus — sociologist Pierre Bourdieu’s term for our manifest and class-bound way of being in the social world — into an explicit productive force without our conscious consent. By continually enticing us to produce more and enrich our self-concept, it presents a clear danger to our ability to maintain a coherent sense of ourselves — to sustain a feeling of ontological security, as Anthony Giddens puts it. Inundated with digital information from all sides — from friends, marketers, and the fruits of own unbounded curiosity — we can fritter away our time shuffling and reshuffling the little bits of novelty without performing a synthesis.

The data deluge and constantly shifting metrics of digital capitalism are hard enough to deal with. The types of civil rights concerns raised by The Offensive Internet shouldn’t be burdening anyone.

X-Posted: Madisonian.

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers. We’ve gone from a situation where we dream up a game, we spend three years making it, we [...]]]> Back in October, Valve co-founder Gabe Newell explained the economics of video games as his company sees it. The Geekwire article is worth the read. For now, I’ll point out that he admits “We don’t understand what’s going on” and uses the language of co-creation of value, which I happen to believe is the current future as it were, to describe what the company is doing:

This is probably the biggest change that’s affected the gaming business over the last few years. It’s not just that we have digital distribution to our customers. It’s that we have this incredible two-way connection that we’ve never had before with our customers.
We’ve gone from a situation where we dream up a game, we spend three years making it, we put it in a box, we put it out in stores, we hope it sells, to a situation that’s incredibly more fluid and dynamic, where we’re constantly modifying the game with the participation of the customers themselves

The comments on piracy comport with insights from other industries:

One thing that we have learned is that piracy is not a pricing issue. It’s a service issue. The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates. For example, Russia. You say, oh, we’re going to enter Russia, people say, you’re doomed, they’ll pirate everything in Russia. Russia now outside of Germany is our largest continental European market. … the people who are telling you that Russians pirate everything are the people who wait six months to localize their product into Russia. … So that, as far as we’re concerned, is asked and answered. It doesn’t take much in terms of providing a better service to make pirates a non-issue.

The information on pricing is really cool. “[W]e varied the price of one of our products. We have Steam so we can watch user behavior in real time. That gives us a useful tool for making experiments which you can’t really do through a lot of other distribution mechanisms. What we saw was that pricing was perfectly elastic. In other words, our gross revenue would remain constant. We thought, hooray, we understand this really well. There’s no way to use price to increase or decrease the size of your business.”

Yet he goes on to describe how sales such as a 75% price reduction lead to a “gross revenue increased by a factor of 40.” They tested against a product they did not own and saw similar results. Then they tested free. It turns out free to play and and free work differently. His thought is that the user base matters because they value the products differently including “what the statement that something is free to play implies about the future value of the experience that they’re going to have.”

Furthermore, conversion rates shift too. Free to play often “see[s] about a 2 to 3 percent conversion rate of the people in their audience who actually buy something, and then with Team Fortress 2, which looks more like Arkham Asylum in terms of the user profile and the content, we see about a 20 to 30 percent conversion rate of people who are playing those games who buy something.”

What do all these tests mean? As Newell said, it’s unclear. That is why I could see some rather cool studies being done for this emerging area.