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The Law Needs to Catch up to the Cyber World

I don’t blog much.  Some would say that’s a good thing. But, after reading Shoshanna Zuboff’s The Age of Surveillance Capitalism, my head has been spinning—almost as much as it spun after I read Cathy O’Neil’s Weapons of Math Destruction.  In fact, my head may still be spinning from reading Cathy’s awesome book.  Regardless, there is not much I’m going to offer here that goes beyond the exhaustive analysis and discussion that Bryan Alexander and Friends provide on his site here.

But, let me offer these several, unorganized thoughts.  First, I think perhaps the best summary of what is my principal quibble with Zuboff’s analysis is that she overlooks the obvious:  people are willing to sacrifice privacy in exchange for the many benefits they receive from going online, using apps, etc.  Bryan cites Nicholas Carr’s point in his review in the Los Angeles Review of Books:

While Zuboff’s assessment of the costs that people incur under surveillance capitalism is exhaustive, she largely ignores the benefits people receive in return — convenience, customization, savings, entertainment, social connection, and so on. The benefits can’t be dismissed as illusory, and the public can no longer claim ignorance about what’s sacrificed in exchange for them.

But, I agree with this conclusion only to a point.  Whether we like it or not, access to the digital world has become almost an unavoidable necessity.  Heck, in 2016, the UN declared that web access ought to be regarded as a human right.  See how long you can go WITHOUT engaging someone or something online.  Even if you take a wad of cash and try to flee to live somewhere near the Arctic Circle, you will probably be scanned driving through a toll booth.

BUT, while the public cannot “claim ignorance about what’s sacrificed,” there is also little question that the sacrifice is made because the web remains a wild west with little in the way of enforceable rules.  Private actors—Google, Yahoo!, Facebook, etc., all operate in a digital universe with no Hobbesian leviathan around to keep them in line.  Our only recourse is to threaten to abandon one provider or platform for a better deal offered by another.  But, seriously…what does Verizon care if you jump ship to Sprint?

The problem as I see it is that right now, the law has not been able to evolve fast enough to be relevant in the digital universe.

For starters, we lack a good legal metaphor for life in the digital world.  Let’s start by saying it’s a “market.”  Well, OK.  That makes sense.  We enter markets voluntarily.  Markets are public entities full of private actors that have rights.   But, those rights are not inviolable.  Merchants can’t discriminate—for the most part.  Civil Rights law prohibits discriminating on the basis of race, gender, etc. in public accommodations.  But, if you play the religion card, you might be able to discriminate against customers you don’t like.

We can leave it to customers to pick and choose the merchants they will support.  But, if all the merchants can somehow discriminate against you, the market can be as open as restaurants and hotels were prior to the Civil Rights Acts.  Go ahead and boycott.  See if the powerful merchants care…

So, merchants are free to operate so long as they abide by market rules against discrimination, monopolies, etc.  But what about those privacy rights we willingly (or have no choice but to) sacrifice when we enter the digital world?  The powers of surveillance and the permanence of digital footprints make privacy claims much less enforceable in the digital world than in the terrestrial world.  In the digital world, we really can’t pretend to be naked emperors.  Our enemy is not some truthtelling child. Instead, it is ourselves since we cannot help but be seen… by everyone.

Still, there are two things wrong with this.  First, there is no question that it can be argued that we “agree” to sign away our rights every time we click “accept” or, simply, log on to Google.  In essence, we contractually agree to fork over our rights.  But, there is such a thing as an unconscionable contract. (OK.  I ran home to mom and cited Wikipedia there).  Zuboff notes in numerous spots that courts have routinely stated that internet users willingly sacrifice their rights and, therefore, unconscionability is not an issue… for now.  Restaurant owners used to run segregated lunch counters once upon a time.  That came to an end.

But how to come up with a right that can be enforced against cyber giants effectively and efficiently?

Second, our enemy may actually be that truthtelling child or, worse, the malignant teen hacker who is able to blackmail or bully us as Danielle Citron details in Hate Crimes in Cyberspace.  To prevent that bullying and blackmail, we need a government with enough cyberpower to track such punks down.  Problem is, that’s a lot of cyberpower—enough to dwarf Hobbes’ leviathan and take on the mantle of, say, Orwell’s big brother.

But–do we really want to hand government—any government—that kind of power?  Can we generate a legal system that can control cyberbullies and Google without threatening our freedom even more?

This problem is not new.  In Federalist  51, James Madison said:

“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

To ensure the preservation of liberty, the framers of the US Constitution gave the federal government lots of power and then divided that power into a system of checks and balances.  That worked well for a 19th century terrestrial nation even of continental scope.  But, what version of that can work in cyberspace?

We can’t imagine that until we conceive of a system of laws, rights and powers that matches the scope and powers of cyberactors.

Bryan Alexander concludes his reflections on Zuboff by saying “Looking ahead, I think Zuboff outlines an unfolding politics.”  For now, the threats posed by the weaponization of cyberpower are of immeasurable scope.  The law needs to catch up to the speed with which that politics is unfolding.  It is nowhere close.

Beware the Gerrymandering Con Artists and Alchemists

I  published a commentary on the Supreme Court’s decision on 19 June to hear Gill v. Whitford (the  latest partisan gerrymandering case) at HuffPost here.

The Supreme  Court has lamented  that there seems to be no  clear formula for determining whether a redistricting plan constitutes a gerrymander.  So, consultants and lawyers are now suggesting that they have found the holy grail of formulae.

There is no such formula.  Worse than Macbeth’s “sound and fury…signifying nothing”, any such formula will be a quiet threat to democracy.  It will promote even more litigation that is paid for by…tax dollars.  Yet, elections will not improve.

We do need to stop the madness…

Goldman Sachs and Higher Education’s democratic dilemma

I  wrote a comment  on the report and the ongoing debate about cost/value in higher education on our other site, Liberal Ed Crisis.  The post is here.

The  real issue at stake is  not necessarily the cost of higher  education.   If we want to maintain the residential model  of higher education, costs will rise as maintaining the physical plant and keeping the student-faculty ratio as low as possible remain expensive.

What is especially troubling is that apologists for the cost of the American model of higher education equate liberal education with a model  of teaching that is expensive. They rebel against  the notion that liberal education can be conveyed  effectively through MOOCs, blended  learning or other  online educational models.  So, as costs increase, critics suggest that the well-to-do will get a “brick-based” education while the 99% will get more of a “click-based” education.

If we continue to resist technological advancement, we then doom the 99% to what  seems to be an inferior educational model that will not convey the benefits of liberal learning because it does not entail classrooms, residential campuses, etc.  The traditional, increasingly expensive model of education remains an ideal.  But, it is clear that if educators do believe that liberal education does convey a package of learning skills and democratic, civic values that are vital to the health of a society, then they have a responsibility to find a way to convey those values through more advanced technological means.  If they do not, they undermine the symbiotic connection between liberal education and liberal democracy that organizations such as the AACU celebrate.

If we look beyond the confines of American higher education, we see that technology is driving the democratization of access to  education.  This TED Talk by Daphne Koller is an especially powerful statement to this effect.  It would indeed be paradoxical if, in the name  of preserving the means of conveying liberal democratic values, liberal educators made those  values less democratically accessible.

The  challenge for our educators today is to find a way to  put liberal  learning  to work embrace technology so  that we can ensure that access to education,  knowledge liberal learning and democratic values is democratized.

We need more judicial activism

I published this piece–In Praise of Judicial Activism–in the Richmond Times here.  It  received limited feedback.  But, it also represents a great change in my opinion.  Earlier in my career, I believed that courts should defer to the elected branches and let them take their  time to deliberate.  Alas, the vision of democracy that underpins that  vision is  somewhat quixotic.  Democracy is quite bogged down by lilliputian interests as Jonathan Rauch and Mancur Olsen have demonstrated. If we wait for vested or entrenched interests to deliberate, minorities may suffer.  Besides, if courts really outrage the majority, it still has the power to pass laws in response  to court decisions.

Democracy and ISIS in Tunisia.

The New York Times ran this article by David Kirkpatrick, “New Freedoms in Tunisia Drive Support for ISIS,” on 22 October on the Arab Spring in Tunisia. In it, we see some of the subplots that were in operation throughout the movement. From the “western” perspective, this is a pro-democracy movement. This is inaccurate. While people across the Arab world do seek freedoms, they seek, more importantly, better lives. They will settle for a UAE-style illiberal state if life is good and sufficiently free. They do not seek western, liberal democracy.

Democracy does cater to the organized. Everyone from James Madison to Mancur Olson to Jonathan Rauch tells us that. In the Arab world, desires for freedom and better economic conditions were and remain tempered by the fear that democracy and elections will lead to rule by the Muslim Brotherhood or, now, ISIS.

Oscar Wilde said that the problem with socialism is that it takes up too many evenings. This concern was palpable during my time in the Middle East and remains so today. If democratic freedom means that one is now free to spend all of one’s free time combatting the political power of the Brotherhood or ISIS, many across the Arab world would settle for a much less liberal version of democracy than that to which westerners are accustomed.   Granted, this is a much easier tonic for folks living in oil-rich, stable states such as the UAE.


Nevertheless, it’s instructive to note that the circumstances under which democracy flourished in North America in the late 18th and early 19th centuries were a far cry from those across the globe today. The spread of democracy across the North American continent was neither bloodless nor always peaceful. Thus, it should come as no surprise that the spread of democracy in the wake of the Arab Spring is following a well-trodden path similar to paths it has taken across the world and throughout history.


Tags: Arab Spring, Democracy, Tunisia, Oscar Wilde

American Democracy, competing with itself?

In the February 1-2 edition of The Wall Street Journal, we find an Opinion page that makes us wonder whether we are living in one country or…many.  On the one hand, Walter Russell Mead (@wrmead) advocates (“A Strategy to Counter Democracy’s Global Deficit”– http://on.wsj.com/1bjLycJ) the export of American and liberal democracy through a more aggressive policy of spreading U.S. Education abroad and either through that initiative or in tandem with it, spreading the wisdom of the great western thinkers (Edmund Burke, Benjamin Franklin, Adam Smith, etc.) to the rest of the world by translating their works into other languages.

There is no question that the best defense is a good offense.  Mead’s suggestion is an eloquent call for the spread of American ideals and liberal democracy through, perhaps, the best aspect of soft power: the university and the marketplace of ideas.

Nonetheless, if we turn to look above the fold on that same page, we find Peggy Noonan (@peggynoonannyc) describing an America that would seem to have little to offer to the rest of the world (“Meanwhile, Back in America…”– http://on.wsj.com/1fomJNF).  There is something wrong when adherence to particular interpretations of liberal democratic principles may actually bring about an illogical if no undemocratic or illiberal result.  Just ask the Little Sisters of the Poor as they struggle to abide by the mandates of ObamaCare or parents in Louisiana as they fight to retain access to school vouchers for their children.

Certainly, there are imperfections and inconsistencies in any nation or ideology.  Nevertheless, if we wonder why the world seems to be resisting the spread of American or western-style democracy, we might simply pause to look first at our own house and get it in order.  It’s hard to sell democratic principles to the rest of the world when they seem ideally suited to driving the U.S. Congress to continued brinkmanship with the nation’s budget and debt ceiling.  The rest of the world scratched its head in wonder as the USA struggled simply to refine the filibuster.  Turning to Europe, we see the wages of European democracy as country after country struggles to maintain an unsustainable economic vision.

From the perspective of the Middle East or Asia, while soft authoritarianism or illiberal democracy may not be ideal, it is not necessarily regarded as a bad option in comparison to the west.  Across much of the Middle East, western style democracy—with free elections and freedom to organize politically—means trading stability, restricted freedom and perhaps peace for the freedom to spend every last waking minute battling the Muslim Brotherhood or other political forces who, because of their organizational skill and power, would easily take control through normal electoral means.  To paraphrase Oscar Wilde, “Democracy would therefore take up too many evenings” in battles essentially to protect ways of life that many folks already have.

Most certainly, one can look around the world and join Mead in lamenting that democracy and liberalism are not spreading their benefits.  Political conditions in many parts of the world are appalling.  But, it is sobering to realize that, as currently practiced, western democracy and liberalism do not present particularly attractive options.

More Second Thoughts on MOOCs?

The Babson Survey Research Group just released a report Entitled “Grade Change: Tracking Online Education in the United States.”  The report is available http://sloanconsortium.org/publications/survey/grade-change-2013 and the Chronicle reports on it here.

There is still concern about MOOC quality, accepting MOOC credits from other institutions, etc.  But, I think the key conclusion to draw from all of the ongoing research on MOOCs is that it is still too early to tell how and whether they are or will be sustainable.

I fear, however, that the debate about MOOCs has distorted the more important discussion about online education in general.  A lot of good consortium-based work is being and can be undertaken through blended or hybrid courses.  Around the world, where many have never had access to traditional, residential, four-year educational opportunities, online options present affordable means of access to university education.

In this respect, it is important to distinguish MOOCs from the online opportunities that truly embody a democratizing force in educational access and attainment.  If online mechanisms can expand access to the best teachers and the best universities, how can we not celebrate that and work to improve the mechanisms by which that access is provided?