Category: Technology


Trust is What Makes an Expectation of Privacy Reasonable

A few weeks ago, I defined trust as a favorable expectations as to the behavior of others. It refers to a behavior that reduces uncertainty about others to levels that us to function alongside them. This is a sociological definition; it refers directly to interpersonal interaction. But how does trust develop between persons? And is that trust sufficiently reasonable to merit society’s and the state’s protection. What follows is part of an ongoing process of developing the theory of privacy-as-trust. It is by no means a final project just yet. I look forward to your comments.

Among intimates, trust may emerge over time as the product of an iterative exchange; this type of trust is relatively simple to understand and generally considered reasonable. Therefore, I will spend little time proving the reasonableness of trust among intimates.

But social scientists have found that trust among strangers can be just as strong and lasting as trust among intimates, even without the option of a repeated game. Trust among strangers emerges from two social bases—sharing a stigmatizing identity and sharing trustworthy friends. When these social elements are part of the context of a sharing incident among relative strangers, that context should be considered trustworthy and, thus, a reasonable place for sharing.

Traditionally, social scientists argued that trust developed rationally over time as part of an ongoing process of engagement with another: if a interacts with b over t=0 to t=99 and b acts in a trustworthy manner during those interactions, a is in a better position to predict that b will act trustworthy at t=100 than if a were basing its prediction for t=10 on interactions between t=0 and t=9. This prediction process is based on past behavior and assumes the trustor’s rationality as a predictor. Given those assumptions, it seems relatively easy to trust people with whom we interact often.

But trust also develops among strangers, none of whom have the benefit of repeated interaction to make fully informed and completely rational decisions about others. In fact, a decision to trust is never wholly rational, it is a probability determination; “trust begins where knowledge ends,” as Niklas Luhmann said. What’s more, trust not only develops earlier than the probability model would suggest; in certain circumstances, trust is also strong early on, something that would seem impossible under a probability approach to trust. Sometimes, that early trust among strangers is the result of a cue of expertise, a medical or law degree, for example. But trust among lay strangers cannot be based on expertise or repeated interaction, and yet, sociologists have observed that such trust is quite common.

I argue that reasonable trust among strangers emerges when one of two things happen: when (1) strangers share a stigmatizing social identity or (2) share a strong interpersonal network. In a sense, we transfer the trust we have in others that are very similar to a stranger to the stranger himself or use the stranger’s friends as a cue to his trustworthiness. Sociologists call this a transference process whereby we take information about a known entity and extend it to an unknown entity. That is why trust via accreditation works: we transfer the trust we have in a degree from Harvard Law School, which we know, to one of its graduates, whom we do not. But transference can also work among persons. The sociologist Mark Granovetter has shown that economic actors transfer trust to an unknown party based on how embedded the new person is in a familiar and trusted social network. That is why networking is so important to getting ahead in any industry and why recommendation letters from senior, well-regarded, or renowned colleagues are often most effective. This is the theory of social embeddedness: someone will do business with you, hire you as an employee, trade with you, or enter into a contract with you not only if you know a lot of the same people, but if you know a lot of the right people, the trustworthy people, the parties with whom others have a long, positive history. So it’s not just how many people you know, it’s who you know.

The same is true outside the economic context. The Pew Internet and American Life Project found that of those teenagers who use online social networks and have online “friends” that they have never met off-line, about 70 % of those “friends” had more than one mutual friend in common. Although Pew did not distinguish between types of mutual friends, the survey found that this was among the strongest factors associated with “friending” strangers online. More research is needed.

The other social factor that creates trust among strangers is sharing a salient in-group identity. But such trust transference is not simply a case of privileging familiarity, at best, or discrimination, at worst. Rather, sharing an identity with a group that may face discrimination or has a long history of fighting for equal rights is a proxy for one of the greatest sources of trust among persons: sharing values. At the outset, sharing an in-group identity is an easy shorthand for common values and, therefore, is a reasonable basis for trust among strangers.

Social scientists call transferring known in-group trust to an unknown member of that group category-driven processing or category-based trust. But I argue that it cannot just be any group and any identity; trust is transferred when a stranger is a member of an in-group, the identity of which is defining or important for the trustor. For example, we do not see greater trust between men and other men perhaps because the identity of manhood is not a salient in-group identity. More likely, the status of being a man is not an adequate cue that a male stranger shares your values. Trust forms and is maintained with persons with similar goals and values and a perceived interest in maintaining the trusting relationship. But it is sharing values you find most important that breed trust.For example, members of the LGBT community are, naturally, more likely to support the freedom to marry for gays and lesbians than any other group. Therefore, sharing an in-group identity that constitutes an important part of a trustor’s persona operates as a cue that the trustee shares values important to that group.

What makes these factors—salient in-group identity and social embeddedness—the right bases for establishing when trust among strangers is reasonable and, therefore, when it should be protected by society, is that the presence of these factors is what justifies our interpersonal actions. We look for these factors, we decide to share on these bases, and our expectations of privacy are based on them.


Data Driven Ag Science Helped Wine, Now Truffles and Why Not More?

Truffles (the fungi not the chocolate) are infamous as difficult to find and quite expensive that may soon change thanks to data and science. Truffles can range from $400 to $800 a pound depending on whether they are from the U.S., France, or Italy. Methods to find them involve voracious pigs, expensive dogs, and rakes–all of which are expensive and can destroy the treasure sought. But as with wine, cheese and other luxury items, farmers are finding ways to expand the supply. I am sure some will say that the quality of the truffle from new areas such as Chile or New Zealand won’t be up the same. But as with wine and whiskey and cheese, with some science and perseverance, it turns out many areas are able to make some damn fine, if not better, offerings than the originals. Just as UC Davis turned wine-making into a science-based industry, a company is turning truffle growing into an industry too.

The company, Symbios, identified some of the most “successful producers of black Périgords in both Europe and Australia.” They analyzed the areas along about 19 variables, and so had metrics for what a good truffle region would have in place. Then they used geographic data from Google Earth and other sources and mapped which areas would be best suited for truffle growing. Apparently 2.2% of Tennessee is good soil, and other states are on tap for mapping. This approach could change much more than the truffle world.

Imagine having rich data about current agricultural, water, mineral, and other interests and systems. Property values might reflect that data. Agriculture at all levels could benefit. Rather than going with monoculture crops, farmers may be able to see that their land is best suited for other crops which would cost less to grow or may be high value crops for rare foods. Of course subsidies would need to change. But there too we might start to ask whether growing crops in certain areas is wise. Some might try to alter land to mimic ideal conditions. I doubt that is smart. But the better outcome of being able to know more about whether a specific plot of land is where to start your dream vineyard of pinot or cabernet or truffle farm is a super cool step forward.


A Slower Boat From China: Pilotless Ships and Changes to Labor and the Environment

A slower but powerful change is coming to a less familiar part of transportation: shipping. The Economist Tech Quarterly headline on Ghost Ships caught my attention because I know the term from piracy and a script I wrote about the subject. Ghost ships in modern terms refer to ships where a pirate crew has gotten rid of the crew, painted a new name on the ship, and/or set it adrift. The new ghost ships will also lack a crew but for a different reason. The autonomous cargo vessels the article describes are an extension of insights from autonomous cars. The returns to this shift could be as important. Shipping has operator errors: “Most accidents at sea are the result of human error, just as they are in cars and planes.” And costs will come down. Not only would a ship not need a pilot; it may not need a crew.

With pilotless ships, a company could almost eliminate the crew. Costs drop not only for labor but for fuel, because ships could move slower for certain goods. “By some accounts, a 30% reduction in speed by a bulk carrier can save around 50% in fuel.” That saving is lost when paying for people and a ship that has to house and feed people. Plus less fuel burnt should result in environmental benefits. And as the article notes, there is a piracy connection. The human cost of piracy would go down quite a bit. I suppose pirates could still try and take over a ship. But holding the crew hostage would not be an issue and so retaking a ship is simpler. Plus I can imagine that a ship going off course and controlled from afar may be more difficult to commandeer. A pirate might not be able to restart engines or take the ship to destinations unknown. The shore control could have a kill switch so that the ship is useless.

As with my thoughts on driverless cars, the new labor will be those who can operate the ship by remote. A shipping center could house experts to monitor the ships and take over as needed. Instead of months at sea, sailors would be, hmm, landlubbers. Not sure I like the sound off that, but then like has nothing to do with what the future is.


Protecting the Precursors to Speech and Action

The Constitution cares deeply about the pre-cursors to speech. Calo wondered where my paper, Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding, parts ways with Solove; it does and it doesn’t. On the one hand, I agree with Dan’s work and build it out. I of course look to the First Amendment as part of understanding what associational freedom is. I also want that understanding to inform criminal procedure. On the other hand, I think that the Fourth Amendment on its own has strong protection for associational freedom. I thus argue that we have missed that aspect of the Fourth Amendment. Furthermore, since Solove and after him Kathy Strandburg, wrote about First Amendment connections to privacy, there has been some great work by Ashutosh Bhagwat, Tabatha Abu El-Haj, John Inazu, on the First Amendment and associational freedom. And Jason Mazzone started some of that work in 2002. I draw on that work to show what associational freedom is. Part of the problem is that when we look to how and why we protect associational freedom, we mistake what it is. That mistake means Fourth Amendment becomes too narrow. We are stuck with protection only for speech acts and associations that speak.

As I put it in the paper:

Our current understanding of associational freedom is thin. We over-focus on speech and miss the importance of the precursors to speech—the ability to share, explore, accept, and reject ideas and then choose whether to speak. Recent work has shown, however, that the Constitution protects many activities that are not speech, for example petition and assembly, because the activities enable self-governance and foster the potential for speech. That work has looked to the First Amendment. I show that these concerns also appear in Fourth Amendment jurisprudence and work to protect us from surveillance regardless of whether the acts are speech or whether they are private.

In that sense I give further support to work by Julie Cohen, Neil Richards, Spiros Simitis, and Solove by explaining that all the details that many have identified as needing protection (e.g., our ability to play; protection from surveillance of what we read and watch) align with core ideals of associational freedom. This approach thus offers a foundation for calls to protect us from law enforcement’s ability to probe our reading, meeting, and gathering habits—our associational freedom—even though those acts are not private or speech, and it explains what the constitutional limits on surveillance in the age of data hoarding must be.


Radio Shack – Will 3D Printing Help It Reach 100? Maybe RS Will Be MakerLabs at Scale

Few companies last more than 50 years. The 100 year mark is even rarer. IBM stands out as a company that has done that. But who knew that Radio Shack is nearing that mark? And some are noting its possible death knell, because of the recent announcement that it is closing about 1,100 stores. The pundits have gone over the mistakes and decried Radio Shack’s inability to play n the modern tech space. I think there is hope and mistake.

Radio Shack appealed to techies. It needs to return to that. My dad made me read the basics of stereos before I could get his old stereo. It was a Radio Shack book. Mobile phones and the like are not for hobbyists. Radio Shack has been at its best helping folks who want to deal with early tech that is tipping consumer. Radios, hi-fi stereos, wires, circuits, transistors, early computers (some might recall when folks took them apart and played with them).

Given my focus on 3D printing I may be biased. Heck. Sure. I am biased. But I am pretty certain RS could re-invigorate itself if it hires relatively savvy people to help with the next wave of home tech. As Nest, 3D printing, and more mean we are automating and tinkering, RS could be a great source for parts and knowledge where no one is competing. (Unlike the mobile market). That is where RS thrives. Of course when I went to one and knew more about speaker wire than the floor person, it was clear RS has lost its way. But there’s a time to reap and sow. Now is the time to sow. RS could be a place for drone, maker, and other tech hobbyists/enthusiasts. The core community is used to online discussions and help. But as the tech goes mainstream there is a gap between I dig it but need help and brainless consumer purchase. RS should embrace that. That is value many consumers who are starting to play with this technology would love. Or at least I would.


3D Printing, Maybe It Is Magic

More and more 3D printing seems like it’s magic. In Patents, Meet Napster: 3D Printing and the Digitization of Things Gerard and I explain that it is not quite magic yet. And our argument is that the law can perhaps make sure the technology has a chance to reach a magical stage. That said each day we wrote a new report made me wonder at how quickly the technology is moving.

Forbes reports that a jewelry company is using 3D printing and Google Earth to print $250,000 jewelry. A couple weeks ago UC Hastings put on a Symposium to Illuminate Legal Issues Posed by 3D Printing Technology. I spoke and had a great time meeting more folks interested in the technology and in seeing it thrive. Mark Lemley gave the key note and is poking at many ideas that resonate with me and my work. He spoke about how technology is changing scarcity and will affect labor. The Forbes piece captures the shift:

Shoppers can completely customize their own design and have the finished product delivered in 3 or 4 days. “We’ve had a great deal of difficulty competing with cheap labor overseas,” said Bakhash, whose father Charlie founded American Pearl in New York’s diamond district in 1950.

“Now, with the advent of our platform, we’re no longer taking off-the-shelf parts and welding. There’s no jeweler at a bench with a blowtorch. The cost and labor savings is phenomenal. And we’re empowering consumers to make jewelry in real-time.”

The process starts on, or its sister site, where a customer is able to create a unique piece, whether a $400 pair of earrings or a necklace that goes for six figures.

The Maker movement and the new wave of customized things is fascinating and exciting. But it may be that the hand-crafted, Etsy moment will be short-lived and the automated, design and print world will take over. I think that the result will be a hybrid. Folks will use the tech to produce more and to make customized goods for less cost. Some labor will be eliminated. Some labor such as design will be valuable. But just like the shifts in copyright, we will see strange and large shifts in who makes money and how it is made. Then again not all of us can be poets and also eat. More on that in another post.


Third Annual Robotics and Law Conference “We Robot”

hdr-we-robot-2014-1Michael Froomkin, Ian Kerr, and I, along with a wonderful program committee of law scholars and roboticists, have for three years now put on a conference around law, policy, and robotics.  “We Robot” returns to the University of Miami School of Law from Stanford Law School this year and boasts an extraordinary roster of authors, commentators, and participants.  Folks like Jack Balkin, Ann Bartow, Kenneth Anderson, Woodrow Hartzog, Mary Anne Franks, Margot Kaminski, Kate Darling, and David Post, among many others.  Not to mention a demo from a roboticist at the University of Washington whose lab built the surgical robot for the movie Ender’s Game.

I’ve discovered that academics in other disciplines habitually list the acceptance rate of papers.  We Robot III accepted only twenty-five percent of the papers under submission, which compares favorably with the strongest and longest-running conferences in computer science, electrical engineering, and human-computer interaction.  Indeed, judging by the abstracts at least, the papers this year are very exciting, taking on difficult and timely issues from a range of perspectives.

On behalf of our community I invite you to register for and attend We Robot, April 4-5, 2014, in Coral Cables, Florida.  I also hope those who enjoyed We Robot I and II will chime in below, if inclined!  Thank you,

The We Robot III Planning Committee


UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672



Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812





To Define the Beginning of Human Life or Not, That Is the Question

Twice a month I meet with some of my students for a critical reading.  In our last January meeting, we decided to commemorate Roe by re-exploring Judith Jarvis Thomson’s  seminal article A Defense of Abortion. Thomson’s defense of induced abortion by exploring our moral duties in the unrealistic case one found oneself kidnapped and plugged in to a virtuous violinist who is sick and needs one’s kidneys for nine months in order to heal has been highly criticized. Nonetheless, every time I read it or discuss it, I find how enlightening her thought experiment still is, as it confronts us with our set of moral beliefs and its incongrueties with our policy stances. Moreover, it makes me always ponder about our lack of a well-thought and coherent abortion regulating scheme.  But that is a topic for a different post. Today, I would like to concentrate on a related matter that stemmed from my discussion of Thomson’s article with my students.

By the end of our conversation my students and I were inquiring whether it was possible to assert a defense of stem cell research/therapy even taking for granted the right of life of the embryos, as Thomson did in her paper. It seemed obvious for almost all of us that using embryos for those purposes would be considered a blatant deprivation of the embryo’s right to life and an impermissible use of another person’s body; and thus, could not be sustained under Thomson’s argument. So we decided to try to come up with a scenario similar to Thomson’s violinist that could aid us in exploring the moral adequacy of stem cell research/therapy.

An appropriate thought experiment eluded our not so brilliant minds. We did not want to come up with a fallacious and common place thought experiment such as the one of the burning building test  in which one is forced to decide who to rescue first: twenty 8-cell embryos kept in a freezer or a baby in peril. We were not looking to formulate an experiment tilted to one side like the burning building test, in which the “incomplete human character” of the embryo is made self-evident by the “inescapable instinct” to rescue the “actual” human being. However, the truth is that it is quite difficult to come up, in a couple of minutes, with a reasonable possible scenario in which all the circumstances of stem cell research/therapy are replicated in a way that could sensibly help us assess our moral agency.

First, we would need to come up with a scenario in which we have a “human being” in a permanent frozen state (e.g. a cryogenized virtuous violinist) in which the conditions necessary for a successful life require a willing human host that is either related to the cryogenized violinist or has the authorization of his guardian to serve as a host for nine months.  Second, we must come up with a particular circumstance (e.g. a military operation) that would force the guardian of the cryogenized violinist to choose between using the frozen body to help in the recovery of a sick non-cryogenized human being (e.g. a  young Science Nobel laureate) whose only real, feasible and cost efficient chance to a healthy life is using that frozen body at the expense of eliminating all possible chances of an uncertain future life for the cryogenized violinist or leaving the cryogenized violinist frozen for an indefinite period of time and allowing for the sick non-cryogenized Nobel laureate to die. Finally, we would need to come up with the circumstances that led the cryogenized violinist to be treated as a surplus human being and at the same time be treated as the raw materials for the creation of future equally virtuous violinists (e.g. the practice of cloning virtuous musicians).  Furthermore, the example would need to consider the possibility of making the cryogenized violinist for the sole purpose of healing the sick non-cryogenized laureate (e.g. the possibility of the world coming to an end if the Nobel laureate does not find a solution to the problem before he dies from her sickness).

The end result is a very absurd, unrealistic and perhaps too intricate thought experiment.  Yet, exploring the limits of such an experiment may be a possible way to coming up with a defense of stem cell research/therapy even when one grants the right of life of the embryos.  Nonetheless, I would like to pose that the absurdity and illusory nature of these thought experiments suggest that we should face the inevitable: we must delimit when human life begins if we truly would like to come up with a moral/ethical regulation of stem cell research/therapy. This inescapable moral question is more evident when we contrast our legal stances and nation’s practices on issues like torture, war, death penalty, abortion, euthanasia and justification and necessity defenses.  The system is manifestly incoherent.

I do believe that a sensible answer will only come when we legally embrace the fact that life – and by extension human life – exists in a continuum. Law should echo that reality. A coherent and ethical sound system can only arise after we legally recognize that there is a point in that continuum in which life becomes human and that there are different stages before that point in which life is a subject of certain rights but not the same rights a human life is a subject thereof. Laws should define that moment and those stages. There is no moral reason to avoid doing so. As there is no ethical rationale either to treat totipotent, pluripotent, multipotent, oligopotent, unipotent cells, fully developed human beings not capable of living on their own, and born human beings in the same way.  Furthermore, our history and legal system have always made distinctions on how we treat the right to life of human beings based on particular deontological assumptions.

Our inquiry into how to regulate stem cell research/therapy should not be made under the assumption that embryos are in fact human beings and subjects of the same rights. A valid answer to this recent human reality must be based on a rigorous analysis of moral questions such as: 1. When does a life become a human life?; 2. Which type of rights is a non-human life entitled to?; 3. Are there different stages of a non-human life?; 4. Are those stages deserving of a differentiated right treatment?; 5. What are our moral duties to a human life?; 6.  What are our moral duties to a non-human life and it corresponding stages?; and 7. Under which circumstances are we relieved from those duties to human and non-human lives? These questions should be guiding our legislative process regarding scientific inquiries and not biased assumptions as to what constitutes human life.


3D Printing Train Continues, Interview on TakePart Live tonight

I will be on TakePart Livetonight at 9 p.m. Pacific/11 Central/12 Eastern, to talk about 3D printing and all the fun it brings. I will be joined by a 3D printer entrepreneur who runs Deezmaker, a comic, and of course the hosts Jacob Soboroff and Cara Santa Maria. I was on the show last fall to talk about privacy and data hoarding. The hosts and crew are HuffPo veterans and a blast. The show is part of Pivot TV, which is available on DirectTV and Dish as well as some cable carriers. Looking forward to great night.