In pursuit of a little eudaimonia with Heather Whitney

Science Fiction + Privacy Expectations: Is the Role of SF changing?

Heather — Fri, 24 Feb 2012 17:40:40 +0000

New post up at Fantasy Matters.

The main idea is just to propose a question: for most adults today, science fiction dystopias of constant surveillance [by governments or otherwise] showed us a world that had yet to come. Today, when kids read these books, they’re seeing scenes that have either already come true or, at minimum, are already technologically enabled. As a result, the stories are no longer taking on the role of shocking these young readers into realizing the possible (and nefarious) uses of certain future technologies in the future (with the hope they’ll then act on that concern).

Given that Fourth Amendment protection depends in large part on what a reasonable expectations of privacy is (though not completely. See Jones), I wonder where we expect those expectations of privacy to come from in the future.

Even if we accept that science fiction can help us frame and reject possible futures, can it still be effective when it’s challenging the status quo? Or worse, when readers don’t see science fiction as challenging anything, but instead just merely describing reality?

US v. Jones (GPS and Fourth Amendment Case)

Heather — Tue, 07 Feb 2012 17:17:53 +0000

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

Heather — Tue, 22 Nov 2011 19:13:27 +0000

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.

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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?

Busa Bushwhack Trail Race!

Heather — Mon, 21 Nov 2011 20:08:43 +0000

Just wanted to write up a quick race report on our Busa Bushwhack trail race this weekend. Chris’ first trail run race ever!

Game Face —>

First off, if you’re in the Boston area, I highly recommend renting a zipcar with some friends and running out at the Callahan State Park in Framingham. Totally gorgeous trails (mostly single track) covered in giant trees. The only negative is the trails aren’t well marked… at all. As in, you will get lost. But, that’s where this trail race comes in! For a small fee you can take advantage of someone else marking which trails to go down for you! Win!

Race details: Had the option of doing 10 or 5.3 miles. Originally, we signed up for the 10 but, after the race was put off a few weeks due to a freak October snowstorm, I felt more out of shape [more studying + colder weather = less long runs]. So, we did the 5.3 instead.

Race day was great and the trails were well marked. My only advice to those of you doing this thing for time is this: go the the front of the pack at the start line. We got stuck behind a lot of people and, I’m sure, lost a few minutes. (People were basically walking through these narrower parts of the trail in the beginning and there was no way to get around them.)

If that makes your head explode, just avoid it — start near the front.

Other than that, it was a great way to get out there and enjoy some trails!

Penguins, Leviathans, and how we understand what self-interest means

Heather — Thu, 03 Nov 2011 19:48:14 +0000

Another two weeks, another post up at Fantasy Matters.

I thought I’d paste below my article - but do leave comments over at Fantasy Matters. (I’d just like to keep a copy here.)

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In her last post, Heather Whitney discussed some of the implications of the legal dilemma portrayed in the Star Trek episode “The Measure of a Man.” In this new post, she expands on some of the discussion generated by her last post.

Choice is complicated. In the moment of choosing, be it an individual deciding whether or not to eat a cookie or a company deciding whether to hand over a user’s data, it often appears to come down to a simple weighing of costs and benefits. But, while that deliberation process is significant, study after study show that there’s a lot more than our in-the-moment weighing makes it seem. We, for instance, are more trusting of others after a quick nasal spray of the hormone oxytocin. We actually eat less food when the plates we’re eating off of are smaller. A lot, it’s clear, goes on behind the scenes of choice. And, for those interested in helping people choose to do good, it’s critical to understand and then use these varying mechanisms to help people harness their “better” selves.

Harvard Law Professor Yochai Benkler sets off to do just this in his new book, The Penguin and the Leviathan. In the book, Benkler frames the battle as between two competing conceptions of human nature: self-interest (selfishness) on the one side and cooperation on the other. While I very much enjoyed (and recommend) Benkler’s book, I want to challenge that setup. Straightforwardly, the battle is not between “purely selfish” people on one side and cooperative “good” people on the other; the battle is between people who misunderstand what’s in their self-interest and those who don’t. And the challenge is figuring out how to get people to reevaluate what self-interest means, since our current understanding (that doing what’s in your self-interest means doing what’s greedy) actually makes it easier for people to choose that greedy thing.

Why Framing and Meaning Matter

When we make important choices, we ask ourselves a lot of questions. We ask which choice would best help our friends and family. We ask what our “gut” tells us to do. If we’re religious, we think about that. And, invariably, we ask “what’s best for me? What’s in my self-interest?”

But asking the questions are just the first step. What really influences our decision is how we come to understand what, for instance, self-interest means.

Here’s a study Benkler discusses that makes this more concrete:

Psychologist Lee Ross and colleagues divided participants into two groups and had them play the standard Prisoner’s Dilemma game. The only difference between the standard version and Ross’ was that Ross told one group they were playing “The Community Game” and the other group that they were playing “The Wall Street” game. To repeat, the only difference between the two games was the name; the difference in outcome, however, was astounding. Those who played the Community version cooperated 70 percent of the time while those playing the Wall Street game cooperated only 33 percent of the time.

The takeaway here is clear: while each participant experienced in-the-moment deliberations about whether or not to cooperate, by framing that choice as one made within a “Community Game” or “Wall Street Game”, the researchers were able to fundamentally alter the way participants went about deliberating. And they did this by exploiting the participants’ understanding of both what “Community” and “Wall Street” mean and what those participants think it means to make decisions within those value-laden frameworks.

Our Current Conception of Self-Interest

Ross’ participants clearly thought of “Community” in a way that suggested cooperation and “Wall Street” in a way that did not. What’s crucial to note, however, is that the connection participants made between “community” and cooperative behavior is in no way determined a priori. We can easily imagine another society that, due to historically contingent circumstances, now associates Community with aggression and hostility. We take the concept Community and then build an understanding (a conceptualization) of it. This also happens with Self-Interest and Selfishness. Formally, these are concepts; what’s important (and potentially problematic) is how we fill them in.

By looking at Benkler’s self-interest vs. cooperation battle we can find the origins of our current conceptualization of self-interest.

Benkler’s Leviathan conception of human nature is fueled by (unsurprisingly) Hobbes’Leviathan and Adam Smith’s Wealth of Nations. On this view, humans are motivated by material gain and power. When deliberating, we mechanically weigh costs and benefits in order to deduce (and then choose) whatever helps us get ahead. We’re robotic, calculating, hyper-rational, and see others as weaklings, mere tools to exploit to their foolish detriment and our greedy gain. We are, quite frankly, unpleasant. It is this view that I think currently shapes our conception of self-interest.

And we can test this. While public service announcements try to get teens to see drugs as actually bad for them, we never call the girl who “just says no” selfish, nor do we call her action motivated by self-interest. Our dominant conception of self-interest sees self-interested actions as motivated by greed, and this girl’s actions strike us as neither of those things.

Instead, we associate this girl with Benkler’s competing conception of human nature – one that focuses on our ability to be virtuous, empathetic, cooperative, and generous. On this view, we can transcend our selfishness; we’re more than selfish. Benkler calls this view the “Penguin” in honor of Tux, the symbol of Linux – an operating system built on free and open source (and thus, Benkler implies, selfless) software. Based on the original choice framework I laid out above, when the Penguin is deciding what to do, she just doesn’t tend to ask the “what’s in my self-interest” question.

Why Our Current Self-Interest Conception Is Harmful

Let’s take an illustration Benkler puts forward to illustrate the difference between Leviathans and Penguins:

You’re sitting on a bench when a passerby drops $100. You pick it up. Nobody is around to see what you do. Do you keep it?

As Benkler sees it, for the “purely selfish person, the answer is simple.” They keep the money because “[t]here are no possible repercussions.” But, in contrast, “for the person with morals [the Penguin], there are repercussions – feelings of guilt for not having returned the money.”
Here’s what I find harmful: When someone is sitting on that bench and sees that money drop, we know that they, in trying to figure out what to do, might be asking themselves lots of different questions (what’s the right thing to do? How will I feel if I keep this money? Think about if you were the one who dropped the money, wouldn’t you want someone to return it, etc.). And, we know those questions can be highly influential. As I understand it, Benkler sees the person ask asking two main questions that lead to opposite choices: you can do what’s in your self-interest (what’s good for you) and keep the money or you can do what’s not in your self-interest but is instead moral (so good in some unqualified sense), and return the money.

But doesn’t this framework, which relies on a deprived conceptualization of self-as-inherently-greedy, push someone to believe that there is at least some value no matter what she decides? She can do some good (good for herself) by keeping the money or perhaps more good by returning it. But that clearly concedes too much. We actually don’t think keeping the money is good for her. And why? Because, when you get down to it, we don’t actually think of our selves as the horribly myopic Gollum-like creatures we would have to be in order for pocketing someone else’s $100 to be so unquestionably in our self-interest. But, because we understand “self-interest” to mean greed, we confuse ourselves. In other words, we’re always going to ask and care about what’s in our self-interest. When we’ve decided that greedy things are always in our self-interest (because we’ve accepted the Leviathan understanding as an accurate description of selfishness) we then think the greedy thing is good for us.

In contrast, imagine a world where our conceptualization of self-interest viewed the self as more Penguin-like. But, instead of Benkler’s view, where the Penguin is selfless, we understood that, being Penguins, helping others was quite often good for them and for us.

Now imagine the person on the park bench. They still have to choose whether or not to pocket the money. But, instead of seeing keeping the money as good for them, now they see doing so as potentially bad for them (it’s not what someone who’s truly self-interested might do). At that point, they may recognize that the only thing counting in favor of keeping the money would be greed – and that greed would be nakedly called what it is, instead of stealthily hiding behind a concept that suggests it is in their self-interest. I believe this framework, like the “Community Game” would set our decision making against a backdrop more conducive to virtuous choices.

So what do we do?

People are always going to be self-interested; when they are deciding what to do they’re going to ask themselves what is best for them. The question, and challenge, is getting them to think about themselves and their interests in a robust (non-Leviathan) way. So how do we do that?

The first step seems to be to change how we use “self-interest” and “selfishness”. If we talk about heroic characters as doing not just good but doing what was good for them, we can slowly transform our understanding of what “self-interest” means.
And then, for the next person on the park bench asking what’s in their self-interest, the inquiry will produce much more robust (and less depressing) thoughts and results.

How we talk about Data (the android) and what it means about us

Heather — Thu, 13 Oct 2011 12:20:43 +0000

Another post up at Fantasy Matters. Now with Star Trek references!

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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.

Guest Blogging at Fantasy Matters

Heather — Thu, 29 Sep 2011 12:23:31 +0000

My first guest post is up over at Fantasy Matters. If you get a chance, take a look and leave a comment (leave the comment there, not here). For a bit of context for those of you who don’t already know — I’m at Harvard Law School and these posts are the product of my current independent study project.

I also highly recommend taking a look at some of the other discussions going on over there. It’s Banned Book Week and the posts and comments about the consequences of censorship are important, interesting stuff.

Megan’s Wonderful Lev Grossman Interview

Heather — Thu, 25 Aug 2011 06:04:20 +0000

To all my fantasy friends out there, you’re in for a real treat. My truly special friend Megan just interviewed Lev Grossman about his new (and absolutely fantastic) book, The Magician King – you must check it out!

As Megan gets out in her interview, whereas the first book was filled with Quentin’s teenage angst (an aspect that made me end up seriously disliking Quentin and thus strongly disliking large chunks of the book), here he’s a bit older and more likable (or at least not so easily hated). And, perhaps Quentin is easier to swallow in this installment because over half the book isn’t about him at all. As you’ll also see in the interview, Julia’s story goes from being a minor flourish in the first book to a much more developed (and heart-wrenching) saga here.

All in all, the new book is fantastic. If you haven’t read it yet, count yourself lucky — a sort of Neverending Story-stay-up-all-night-with-a-flashlight book awaits! Great interview, Megan!

Published my first article!

Heather — Sun, 17 Jul 2011 23:57:39 +0000

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

Heather — Mon, 31 Jan 2011 23:50:32 +0000

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.