US v. Jones (GPS and Fourth Amendment Case)
February 7, 2012
For those looking for a better explanation of the case than given in a three line news article but a bit less than you’d get in a 30 page case comment, take a look at my case comment up at JOLT Digest. Would love to hear how non-lawyers see the case, especially the two concurrences.
[JOLT Digest = The online companion to the Harvard Law School Journal of Law and Technology]
Names in Utopia
November 22, 2011
New post up at Fantasy Matters.
Please read and comment there! I’d love to hear if anyone else has read this novel (Woman on the Edge of Time) — it was quite different from my normal dystopic tendencies.
—————————————————————————————
In her last post, Heather Whitney explored the concept of self-interest and argued that we need to rethink what we mean by it. In this post, she examines the power of names, as inspired by her reading of Marge Piercy’s novel Woman on the Edge of Time.
Names are strange and powerful things – we see this in our own lives and in fiction. In fiction, I instantly think of The Neverending Story, where the only way the boy Bastian can save Fantasia and the childlike Empress is by saying her name. In our own world, many women struggle with whether they should adopt their husband’s last name upon marriage, thereby giving up their father’s.I recently read Woman on the Edge of Time, a post-gender feminist utopia novel. And, in a novel filled with complex and difficult themes and ideas, it was the contrasting use of names between that 2137 utopia and 1970s present that I found particularly interesting. Here, I’d like to spend some time thinking about what names seem to be doing in these alternate realities. To that end, I’ll first summarize the novel and sketch out some of the distinctions I see. Then, I’ll raise a puzzle.To be clear, I don’t know how names ought to function – in utopia anymore than here. I’m not even sure, as a descriptive matter, I quite understand how names function at all. Instead, my goal here is modest: I’d like to simply raise a question for the reader – a question that, I hope, provokes both reflection and response.
Brief Story SynopsisThe novel follows Connie (aka Consuelo, aka Conchita), a poor Mexican woman who has been in and out of One Flew Over the Cuckoo’s Nest meets Clockwork Orange-esque mental institutions. The novel begins when Connie is once again forced into one of these institutions, this time against her will. Around the same time as Connie is readmitted, she begins communicating with, and eventually visiting, people in 2137. This utopian future, whether real or imaginary, stands in sharp contrast to both Connie’s mid-1970s reality and the alternative totalitarian future only she can prevent. In Utopia 2137 the nuclear family has been eliminated; it’s also post-race and post-gender [no “he”; no “she”; men as well as women breastfeed; and women no longer bear children (as they had to give up what “made them special” in order to achieve true sex equality)].
Naming
Naming is also quite different in 2137. While a child is given a name, upon reaching adulthood (at around 13), the child is free to change that name – not only once, but whenever they’d like. Some change their name daily (risking only mass confusion) while others change their names once, twice, sometimes, or never. The idea is that individuals are free to change their name whenever and to whatever they’d like. But, interestingly, what you don’t see in 2137 is people having more than one name at the same time.
We can contrast names in 2137 with Connie’s name experience, as she explained to those in 2137:
“‘I’ve always had three names inside me. Consuelo, my given name. Consuelo’s a Mexican woman, a servant of servants, silent as clay. The woman who suffers. Who bears and endures. Then I’m Connie, who managed to get two years of college—till Consuelo got pregnant. Connie got decent jobs from time to time and fought welfare for a little extra money for [her daughter]. She got me on a bus when I had to leave Chicago. But it was her who married Eddie, she thought it was smart. Then I’m Conchita, the low-down drunken mean part of me who gets by in jail, in the bughouse, who loves no good men, who hurt my daughter….’ When she stopped short, the others were silent but did not seem scared or judgmental. As usual, Luciente [Connie’s main guide in 2137] spoke first. ‘Maybe Diana could help you to meld the three women into one.’”
From the above, we can sketch out the major differences between names in the two worlds:
2137 (utopia)
- Individuals are free to choose their own name
- Individuals are free to change their name at any time
- All people at time t refer to you by the same name, x.
- The same people who called you x at t1 will call you, if you decide to change your name, y at t2.
Present (1970s–portrayed as virtually dystopic)
• Individuals are given their name, but it’s unclear if Connie chose to go by these three variations of her given name or whether others put those names upon her
• Not all people at time t will refer to you by the same name [we imagine Connie goes by Connie in class but then returns to her neighborhood and is called “Consuelo.” When she gets upset with herself, she may internally refer to herself as “Conchita.”]
• Very rarely does the same one person call us by more than one name (whereas a person in 2137 decides to change her name and, as a result, the person who called her x yesterday will now call her y, in our world, that rarely happens (except with women’s last names).
Given the response people in 2137 had to Connie’s explanation of her experience with names and identity, it seems safe to say they (and the author) see Connie’s divided identity as a bad thing. I’ll call the people in 2137’s problem with Connie’s divided identity an objection to Vertical Disjoined Identity. That is, people in 2137 object to multiple identities (represented by “Consuelo”; “Connie”; and “Conchita”) coexisting at the same point on a timeline.But, given their willingness to change their own names frequently over time, they are clearly not opposed to what we can call Horizontal Disjoined Identity. That is, while they think an individual should only have one name at a time, they find it acceptable to change that name over time.
So my question is this: why, in purported utopia, is Horizontal but not Vertical Disjointed Identity acceptable? Classic super heroes engage, to some extent, in Vertical Disjointed Identity. Those who play WOW (World of Warcraft) or otherwise have alternate names and identities online do the same. In fact, so did I when I went only by “Summer” at summer camp. And these aren’t just examples of one unified identity with multiple names; Batman acts different, plays out a different role, when he’s Batman than he does as Bruce Wayne. As Summer, I felt like a different person – a better, kinder, and happier me. I felt like I was a different person – the sort of person I imagined a “Summer” to be.
So, is Vertical Disjoined Identity bad? If you imagine utopia, is it eliminated?
Why?
How we talk about Data (the android) and what it means about us
October 13, 2011
Another post up at Fantasy Matters. Now with Star Trek references!
————
In Not Only for Myself: Identity, Politics & Law, Martha Minow references a Star Trek: The Next Generation episode that I wanted to expand on in this entry.
Episode Synopsis
The episode, “The Measure of a Man”, centers on Data, an android. In the episode, a cybernetics specialist (and Starfleet Commander) requests permission from Captain Picard to disassemble Data for research purposes. The Commander explains that through the operation, he’ll (he hopes) finally acquire the knowledge necessary to mass-produce androids. The procedure, however, is not without risks. The Commander cannot guarantee that post-reassembly Data will retain memory of the “ephemeral” quality of his experiences. Upon realizing this, Data refuses to consent to the procedure. And, Captain Picard, Data’s superior officer, also refuses consent. Anticipating their less-than-enthusiastic response, the Commander produces transfer papers that place Data under his command. And, as Data’s new superior officer, orders him to undergo the procedure. Left with the unattractive choice of undergoing the procedure or quitting Starfleet, Data decides to quit. Furious and undeterred, the Commander argues that Data cannot quit Starfleet anymore than the ship’s central mainframe can; Data is property and property can’t quit. The on-site JAG officer agrees but Picard, also undeterred, demands a trial to challenge Data’s property designation.
At first, the courtroom debate is as you’d expect; the argument was whether Data was property or a person and so, both sides pointed to different facts about Data to prove their side. (“Data can be turned on and off by a switch, which makes him a machine, which makes him property.” “Yes, but Data also values friendship and keeps sentimental trinkets, so Data is really a person.”) But then, the strategy changes. Instead of focusing on facts about Data to prove his personhood, Data’s lawyer (Picard) reframes the entire question, asking instead what sort of people they wanted to be. On the cusp of potentially creating an entire race of androids, did they want to be the sort of people who would deny them personhood? The sort of people who would choose to look at an android who saw himself as a person and tell him he was mistaken? Is that who they wanted to be?
In the end, the court found Data to be a person. But, before leaving, Data tells the Commander that he will agree to the procedure once the Commander figures out how to ensure his safety, adding further that he finds the Commander’s research to be intriguing. In later episodes, Data and the Commander take up a correspondence, as equals.
Minow uses this scene to explore the idea that when we are not for others, we are capable of monstrous acts. Here, I bring it up instead to explore the multiple frameworks from which we can view difficult questions and the importance of utilizing each in our decision making process.
As I see it, there are two overarching deliberation frameworks highlighted in this episode:
- How we as a society make legal determinations and why that process matters.
- How individuals make decisions and the danger of individuals conflating and collapsing moral and ethical questions into legal ones (i.e. thinking that just because an option is legally permissible, they should do it.)
The significance of legal determinations
The episode powerfully illuminates that there are at least two distinct perspectives from which we can make legal arguments.
First, we see the traditional model. The question is whether Data is property and so both sides argue that, all of Data’s attributes considered, he’s more machine than person or more person than machine.
The second type of argument, the type Picard ends with, is radically different. Instead of making the legal determination based on facts about the thing being labeled (Data), the tables are turned and the judge is asked what the court’s decision says about them. To make a decision based not just on what Data is but based on what sort of people they wanted themselves to be.
Both types of arguments are powerful and important.
The first type of argument (pointing to facts about a person and making institutionally-supported conclusions based off them) unavoidably leads that individual, and those who share in his attributes, to internalize those determinations and, as a result, be shaped by them. Minow references a Washington Post article, “Stereotypes Within,” that captures how sixth graders have already internalized stereotypes about their own ethnic groups that greatly limit their sense of self and future opportunities. Picard makes a similar argument with regards to Data – by calling him property, they would preemptively deprive him the joys of self-discovery and creation. The point here is not that all institutionally-supported classifications are inherently bad, but just that they are powerful. Thus, we would do well to tread lightly.
The second argument reminds us that what the law is is a reflection on who we are and who we want to become. Minow emphasizes that when we are not for others we are capable of monstrous acts. This episode adds an interesting twist for it seems that sometimes focusing exclusively on others, by weighing factors about them, lends itself to our forgetting that we too are transformed by our decisions. In other words, at least sometimes, the winning argument may be a selfish one. What is best for us, Picard asks. Do we want to be monsters? We have to take care of ourselves by making decisions that help us become who we want to be, too.
The responsibility of the individual
As society is shaped by what it permits and prohibits, so too are individuals shaped by what they choose to do. An option being legally permissible is only the first step; the second harder and ennobling one is to then decide whether to not to actually pursue it. When we neglect the second question, we deprive ourselves of the blessing of being the sort of creature who has shaped herself by making choices she thought good.
Imagine that the court found Data to be property. If the Commander would have then disassembled him, we would still find the Commander morally repugnant. We condemn the society that says such behavior is permissible but we also separately judge the man who takes advantage of that opportunity.
The episode, and stories like it, helps us pull apart the many viewpoints from which we should examine our decisions. We can tear down or empower others with the law, our society is shaped in part by what we allow, and we as individuals are made by what we choose. We should, it is clear, take care.
Published my first article!
July 17, 2011
I know I’ve been off the radar for a while but, to get things started again, I thought I’d share some great news — I just got my first article published! JOLT (Harvard’s Journal of Law and Technology) published a short piece by me entitled “Google+ Puts Premium on Privacy and Data Portability”, though I might suggest they change the name to something like “Google+ Puts Premium on Data Portability: But Is It Enough?”
The point of the article is straightforward: Google+, by simply entering the social networking market, is doing a lot of good for users. There’s increased focus on privacy and, given Google’s Data Liberation push, more about data portability. But, while that’s a step in the right direction, if we step back, it becomes clear that the real issue is that we keep giving incredible amounts of valuable personal information to a single company (be it Facebook, Google, Myspace, etc.). And, after we do that, we tend to feel locked in/invested in that company such that we are reluctant to leave it when either 1) they do something that upsets us or 2) we see another product that has the potential to be much better.
The same issue was seen with the recent Netflix price increase — everyone is pissed not only because price increases are always unpopular but because 1) there’s no good Netflix competitor (and thus it’s more difficult to voice discontent in a meaningful way [e.g., by switching providers]) and 2) even if there were a viable competitor, switching after a user has invested a non-trivial number of hours ranking movies in Netflix means losing out on a lot of earned value [surprisingly accurate movie recommendations].
In essence, a user information-based service like Netflix and Facebook gets stronger, and usually more valuable to users, the more data users feed it. This is a win-win until that service becomes so dominant that the incentives for innovation trail off and the concerns of, say, advertisers become more pressing than those of users. Because the user-side costs of switching are high, users feel locked in to a sub-par service. This locked-in feeling doesn’t just mean there’s less-than-ideal innovation in a field. Think about privacy as an example. For Fourth Amendment purposes, a persons “reasonable expectation of privacy” is crucial. Well, what’s reasonable? What someone thinks is reasonable tends to correspond quite highly with what they’re used to. Now, for instance, we all think it quite reasonable for our friends’ updates to show up on a constantly changing newsfeed on our Facebook front page. But, back when that feature was launched, people were up in arms; now, they can’t imagine Facebook without it. I’m not saying what Facebook or others have done is good or bad. But, it’s important for us to realize that users being locked in to these services might mean users forcing themselves to acclimate to things we might think not so great, and our conceptions of what is “reasonable” being shaped in non-ideal ways as a result. With competition, when we don’t like something we can act in meaningful ways to stop it — we up and leave.
I pose one solution in the article, but I’d be interested to hear your thoughts! Feel free to post your comment directly on JOLT’s site or email me directly.
CyberBullying
January 31, 2011
Another day, another fantastic talk. Today, Professor John Palfrey from the Berkman Center (which you absolutely must check out, if just to see all the awesome work they’re doing) gave a talk on the potential pragmatic and constitutional issues with current legislative trends in cyberbullying.
As many of my friends know, I find bullying an incredibly important topic. (This is no doubt influenced by both my firsthand experience of it and more general reading on the psychological effects this sort of experience can have. And I’ll just say, its effect cannot be understated.) But, with that said, there are hugely important questions about the chilling effects legislation can have if not created carefully.
So, I’ll just list a few tidbits to chew on below:
- One of the most interesting questions posed was something like this: Depending on how you define bullying, are there certain types that are in fact speech we want to protect? Thinking of the LGBT community, the use of “outing” as a political tool, way to expose hypocrisy, etc. has been seen by some to be hugely important. In the world of defamation, a complete defense to the accusation is that what you said is, in fact, true. That of course won’t work in some of these bullying situations — where it might be the very truth of it (the “outing” if we expand its meaning a bit to encompass all disclosures of truthful information the person doesn’t want disclosed) that can be, in some cases, so traumatic. So, where do we protect the free speech/ right to speak the truth versus the fact that, in the eyes of some, it might be classified as bullying?
As a response, there was some discussion that we might see a difference between outing someone who is already in the public eye versus the privacy that might be differently due to a child. But, in general, I think the fact that this was a hard question remained.
- Another interesting issue that I haven’t thought about before has to do with potential due process concerns. In some legislation, we give wide-reaching powers to school administrators to visit fairly severe punishments on students accused of cyberbullying. And, even before that punishment is enforced, the school administrators can demand the students to comply with questioning with no lawyers, no guarantee of a fair hearing on the matter, no nothing really. What should we do about that?
As Professor Palfrey pointed out, what’s interesting about the internet is that there is an expectation of a lot of private ordering to deal with what are in essence legal issues. For instance, think about the DMCA takedown requirements. There’s no judge that says whether or not a certain video should be taken down. The alleged copyright holder sends a demand, it’s taken down, the person putting it up gets notice and can explain why it shouldn’t be taken down, but a judge isn’t deciding in that process (granted, litigation can ensure later down the line but let’s be realistic about how often the average YouTuber is going to have the financial means to go down that road.)
The point is: we already expect a lot of private ordering to resolve issues on the internet. Granted, in the case of cyberbullying you’re empowering public school administrators, but the same questions of due process and general justice remain.
That’s good for now. Would love to hear people’s thoughts. There are plenty more notes I took from the talk and you can find them all here. I just can’t write about them all because, alas, law school beckons.