Computers, Privacy & the Constitution
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Convenience And Chaucer

The class is over. I didn't reach a satisfactory understanding of this strange convenience emotion that everyone claims is motivating their decisions. I found a paper(1) that I feel is headed in the right direction but kind of surface-level, and it got me thinking.

Manufacturing Consent

Marxists and anarchists have argued that democracy, whether or not it actually reflects the desires of the population, is not solely a system to transform the opinions of the population into law. Antonio Gramsci(2) explained the capitalist state rules through a combination of force and consent. Force is applied in the extreme instances, but, from the ordinary policeman to the operation of the judiciary to the father within the home, other forces encourage self-regulation and compliance. Democracy is useful partly because the idea that the policies that result were and are our collective democratic choice helps defuse anger, giving the losers a hope that they can vote in their policies next time and giving them reasons to believe their obedience to what they know is wrong is still warranted. Our ideas of democracy and the rule of law, whatever truth they may have, are also forms of intellectual capital employed in the labor of manufacturing consent.

Manufacturing consent is a tricky business. The neoliberal hobgoblins avoid the problem through nominalism(2)? by ignoring what is good and defining everything in terms of preferences which are defined in terms of your behavior. So whatever you chose, whatever you wanted, was the best of all possible options for you, and you must have consented to it, absent the most extreme force or fraud. Master Pangloss would be proud. In many areas of the law consent works its magic, whether it is the false consent of the plea bargain with the district attorney, or whether it is your notice and consent to a privacy policy. The defense of both the individualized data privacy systems we have and the defense of what is supposed to be a better system under the GDPR is the same defense which is always used when the talisman of consent is invoked: You are a rational, deliberating mind who can choose what is best for you. Because you have full notice and information of a website or application's privacy policy and because you are a rational deliberator, you will deliberate on that information and whatever choice you make will be the one that benefited you more.

That defense works sometimes, but it relies on presumptions. One presumption is that we have all, or at least enough information. The other presumption is that our behavior is actually in line with, rather than disconnected, from our deeply-held values and beliefs.

Issue One: Information Asymmetries

In 2015 when Gordon Hull wrote the paper that inspired me, he wrote that users were unaware of the uses to which their data could be put, how it could be used against them and against their friends. This defeated the possibility of the rational deliberation process working as assumed. One of the things we observed in this year is that this part of the problem is dissolving. "They won't be interested in me" is not true because Cambridge Analytica has my, literally my, data, and "you have nothing to fear if you have nothing to hide" is no longer true because ordinary people are being influenced to move elections. That is reasonably fearsome to everyone, and also indicates that non-state actors with all kinds of desires will obtain and use this information. Part of the answer to Tripp Odom's terrorism issue is that all the information on which young teenagers are looking for a reason to blow themselves up has been collected. Think about this seriously: One guy with the data and the right R knowledge can set up a filter based on everyone who's committed a terrorist attack for the cause and tell the machine "more like these, please." The same way you filter spam or relevant documents in discovery, you can filter your suicide-murders, and the teenagers just six inches away from choosing suicide by cop will have lots of new friend requests. Knock over one big social network and you've got all the good leads like it's Glengarry Glen Ross. That was always true but it's not too hard to understand now.

The Law and Economics approach would state that once a previous information asymmetry is resolved, when a rule or a new circumstance forces the revelation of what was dark, parties negotiate a new result out of their new understanding of circumstances. But, as pointed out by Chris Hoofnagle, this is essentially impossible with platform companies because your individual bargaining power is negligible. The terms are always "By entering this virtual property, you consent to any indignity that increases my utility."(3)? Hull also points out that it is impossible to consent because what is revealed about you through each little transaction or indiscretion is actually unknowable to you, with all sorts of likes and tiny behaviors being able to predict personality traits and states of being. "For example, users who liked the “Hello Kitty” brand tended to be high on Openness and low on “Conscientiousness,” “Agreeableness,” and “EmotionalStability.” They were also more likely to have Democratic political views and to be of African-American origin, predominantly Christian, and slightly below average age."(4)? The big data and AI means even if you intimately know and carefully consider each discrete piece of your personal information you give away, you cannot possibly conceive of what a machine with infinite computing cycles and ever-more sophisticated algorithms can mine from that information. And then, you may receive targeted advertising exploiting the fact that you suffer from anxiety disorder before you know you have an anxiety disorder yourself.(5)?

Even if everyone cannot state this in this way, it is being recognized by everyone. We can help them recognize it more, but one way or another, enough people are realizing that they have a choice: The choice is either to refuse to deal with people who don't care about you and want to exploit you and find alternative technical solutions to meet your needs, or to find a reason you can't stop dealing with them, a reason you can't get away to justify the harm to yourself and all of your friends which is getting too hard to deny. Convenience is emerging as that reason.

The Number Of The Beast

Convenience used in this sense in English appears at first glance to be a misnomenclature. It does not appear to be making tasks of social interaction, staying informed on the news, or getting work done without distraction simpler or easier. In one sense, the platforms are convenient in the sense they have become very easy to use, but the mere ease of use does not appear to be why they cannot be given up. My hypothesis is that the real fear behind the bulk of the emotion people call convenience is not having to understand more technology. My hypothesis is that the real fear is being strange and left out. When I was invited to a group text for a 1L study group, I was using an old rooted Android phone at the time. Someone complained to the group chat "ugh, green texts." The attachment to convenience is a fear that if we do not communicate in a way compatible with what other people find easiest, they will not go to any extra effort to communicate with us, and we will be left out.

The platforms exploit this. It's a huge pain to get iMessage working on a windows device, and it's impossible get permission to view someone's Facebook updates or Facebook message them directly without creating an account of you. Part of why Diaspora didn't get off the ground was because the cross-compatibility between Diaspora pods and Facebook friends was cut off at the Facebook end. A quiz app can steal plenty of data but you cannot, cannot, cannot migrate accounts off the serivce, ever. And that requirement of GDPR will inevitably be toothless because you can grab all the data but they will never build in a way to migrate an account off the service. They will say that is technically impossible, always.

Gregory Suhr, a guy I don't know, found the same thing I did after giving up carrying a phone to the law school: when you come home at the end of the day and see all those messages, it's like a big hit of delayed gratification. You come home and see all the electronic people and places where you are wanted and accepted calling for you. I can certainly give up carrying a phone around during the day and I still do not carry one unless I have a special reason to do so. But cutting the cord on every last operating system, every last app would be hard because you would not be able to get everyone else to come with you. Tripp Odom pointed out rightly that we are paralyzed by fear of the parties we wouldn't be invited to and, most of all, the relationships we wouldn't maintain. And those little blips of connectedness are so easy to send and receive. When my mother was a new mother dealing with post-partum depression in a suburb where she knew no one, her and women in similar situations invited each other to dinner and so on. No one has anyone over for dinner any more without planning it a week in advance on their Google calendar and everyone in our generation would perceive that invitation from a new person as either a multi-level marketing pitch or a romantic proposition.

The "convenience" emotion is a collective action problem which we were deliberately herded into. We are not more connected than ever before. We have less authentic human connection than ever before. We are more depressed than ever before - specifically, young people are more depressed than ever before. The the little interactions which give us a buzz that is a little like nicotine, with its special combination of sedation and stimulation, are displacing old ways of being in connection with one another.

The problem is a first mover problem. Most of us want to quit, but the first people to quit fear having neither the connectedness with others produced by the platform making them into a product nor old-fashioned connectedness. I conceptualized it myself as "I want to quit, but I would like to be the last one out the door." But I am not the only person who feels this way: almost Everyone, now, together, is in my position. It would take a lot of courage to say "I will be the person who leaves first, now, and find my own ways to be connected with other people." But that is hard, and it is difficult to imagine it being done. It will be too hard without more equipment for people to imagine themselves doing it. Other people are working to invent good techy solutions like Freedombox, and plenty of the old stuff like IRC and internet forums that respect user privacy still work just fine. What we are really lacking to deal with the convenience emotion is a narrative, preferably a true one that serves as a blueprint: A narrative about how you can get out and successfully rebuild a richer social life than you had before. Until people are made to believe this is not only possible but entirely within their power with no special skills or traits, the utility of technical solutions will be limited because the platform companies will employ their resources to keep people from migrating off.

Hello From The Other Side

I am most comfortable writing in 3000 word blocks split into 3 pieces. The last 1000 words is for the story about how it happened, how we rebuilt rich and flourishing social lives and didn't die after we ripped out the IVs drawing out our personhood. A lot of us have made some progress. Matt Conroy, I strongly suspect, is the furthest along. But the narrative that is created cannot just be a single narrative about any one person. It needs a Canterbury Tales cast of diverse personages. The children of immigrants figuring out how to stay in touch with family back home without Whatsapp, fraternity boys and sorority girls figuring out how people used to organize Greek life, nerds finding fellow nerds to share their nerd interests with, career-minded people figuring out how to network without Linkedin, the artistic types figuring out how to showcase their photographs or their selves to the world effectively without relying on a platform. Young mothers who want to get support for dealing with post-partum depression or run for local office.

A Canterbury Tales for freedom in the 21st century must be a hypertext(6)? where you journey through the tales of these various characters. Differing lifestyles, differing ages, differing cultures, differing values, differing ways of understanding reality must be represented in relation to one another. The hypertext can do a double duty - in telling the story of each individual liberation, the characters can also respond to one another in deeper ways than are typically possible through the synchronous text-based messaging technologies which are molding and mouldering the majority of our interpersonal interactions. The Canterbury Tales surpassed earlier medieval works of authorship partly because the tales contained within were radically different and, instead of serving a main theme of all tales proving some moral virtue or maxim, the richness emerges through the differences of and the interplay between this strange collection of people who are all on a pilgrimage together.

-- JoeBruner? - 14 May 2018


2 ? : If you are interested in this sort of critique of neoliberal law and economics, read Economic Analysis of Law: Some Realism about Nominalism, available for free here:

3 ? : Hoofnagle & Whittington, 2014, pp. 640-641,

4 ? : boyd & Crawford, 2012,

5 ? : For information on how big data has led to targeted marketing towards individuals with specific mental disorders, see Bernard Harcourt's Governing, Exchanging, Securing: Big Data and the Production of Digital Knowledge

6 ? : see Literary Machines for information on Hypertext, which I uploaded and made accessible:

-- JoeBruner - 14 May 2018

Hi Joe,

I have a couple of thoughts on this piece, especially the Number of the Beast section. The first is sort of an anecdote, but I have been experimenting over the last couple of months with trying to get my friends to switch to Signal. For the most part it has not been a great success (I guess a law school course on persuasion would be extremely useful for me), but I will point out that it was tremendously valuable to me personally that there were people who agreed to switch simply because I told them that it matters to me. Along these lines and as a big fan of TS Eliot, I think J Alfred Prufrock has a place in this sort of conversation.

The second is I think the usage of a biblical reference is a shrewd one. While I was living my rich and flourishing social life by wandering around the Met Museum alone, I came across this sculpture (slightly NSFW) which I think is a prescient study of the relationship between people and their smartphones. I haven't done enough reading on religion and sociology to really be academic about it, but it seems to me to be correct. Eben has invoked Marx and the opiate of the masses before (I know he did in Law in the Net Society, I can't remember if he did in this course) which is almost surely part of it, but I think the sculpture adds to the conversation in terms of the physical relationship with the device and driving the point home. I don't know if a picture really does it justice though, so I would suggest checking it out in person.

-- MattConroy - 16 May 2018

Signal looks like a good alternative. I will try and make a bunch of teenagers switch to it and see if I get any results. Maybe we can get a group text going for everyone still interested enough in the subject matter of this class for those who prefer a more synchronous form of communication.

The Number of the Beast reference is really there because of its interpretations among the laity in the 90s Christian eschatology I grew up around. On the one hand, the Mark of the Beast was something most people would take upon themselves, often on the right hand, which harmed them in some spiritual way but which felt important for social acceptedness and being part of a group. And the smartphone does go in the right hand. And maybe this mark would control or inform on you and your friends. So in part it represents the idea that the devil is here. On a more meta-level, though, the repeated Christianity references I keep sneaking into everything are also a sort of complaint about how the pro-privacy side can sound. "No, Jimmy, you can't use that app because it doesn't respect your privacy and right to read its source code" sounds way too much like "No, Jimmy, you can't read Harry Potter because it's demonic." I think trying to convince parents to get their kids off platforms is not a good enough idea by itself because my parents really, really did not want me using MySpace? and Facebook in the early days and it only increased my enthusiasm for them. Parents will never be that good at controlling teenage use of technology. Fortunately parents are doing a good job of making Facebook lame. Facebook saw this and bought Instagram. Facebook and Google are probably both trying to buy Snapchat because that is the next one. The kids like privacy enough to want everything to be self-deleting because by the end of middle school they've had someone screenshot their stuff and use it against them. Kids have to feel like they are being cool, subversive, and independent instead of just being told to D.A.R.E. to resist privacy-compromising technologies.

That sculpture is definitely interesting. I will try and stop by and see it soon.

-- JoeBruner - 17 May 2018



1 :

2 : For more on this, see Gramsci's Prison Notebooks, available for free here:


Webs Webs

r6 - 17 May 2018 - 05:51:46 - JoeBruner
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