One of the dominant definitions of privacy—particularly in the policy world but by no means confined there—is that of control over personal information. Certainly it influences data protection law in Canada, which requires organizations to obtain the consent of individuals for the collection, use and disclosure of personal information. One of the great advantages of such a model is that it does not limit protection to a particular sub-class of personal information such as information that is sensitive and intimate—“personal information” is simply information about an identifiable individual. This makes such models potentially more responsive to information practices that rely less on intruding into a sensitive sphere and more upon compiling pieces of information that, on their own, are not sensitive and may even be “public.” However, the breadth of a control-model is also its Achilles heel: to create a workable scheme one needs many exceptions and without careful thought these may be clumsily introduced. Canada’s experience with these regimes bears this out, and I have documented these problems elsewhere.
For the purposes of this blog, I want to focus here on a particular strategy for limiting the breadth of a control-over-personal-information model of privacy that is popular in Canadian jurisprudence: the idea of a "biographical core." Canadian Supreme Court constitutional privacy jurisprudence (arising out of the search and seizure context) has often endorsed ideas like control over personal information in relation to informational privacy. However, most of the real work is in fact being done by a much narrower idea. Informational privacy is said to protect one’s “biographical core of personal information,” which has been defined as including “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant) This narrowing of personal information to one’s biographical core is also present in data protection regimes, although less explicitly, because of the need to provide some personal information with stronger protection than other information (for example, this sometimes plays out in debates regarding the type of consent required or in how a balancing test is implemented).
I have pointed out this trend at a number of practice-oriented forums and usually get one of two responses. The first, from decision makers, is that of course they have to operate with some idea of a “biographical core” because some information is more sensitive than others and this is the only way to properly engage in a privacy risk assessment. The second, from various privacy advocates, is shock and dismay that the privacy community is reverting to what looks like an idea of sensitive and intimate information that seems wholly unsuited to meet current privacy challenges.
I, however, think that privacy-as-protection-of-one’s-biographical-core has far more in common with privacy-as-control-over-personal-information than simply its pragmatic use to narrow an overly-broad definition. They both draw upon a similar idea of the self.
This becomes readily apparent if we consider the work of Alan Westin in his influential book, Privacy and Freedom. Westin is often cited for this classic privacy-as-control statement:
Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. (p.7)
But Westin also goes on to write:
privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve. … [E]ach individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others (p. 7)
…
The most serious threat to the individual’s autonomy is the possibility that someone may penetrate the inner zone and learn his ultimate secrets, either by physical or psychological means. (p.33)
From this we can see that Westin’s claims regarding control over information are in service of an idea of privacy as social withdrawal—an idea that lines up with more traditional privacy ideas such as the protection of secret, sensitive and intimate information. Moreover, this withdrawal is ultimately in service of the protection of an “inner zone” that parallels the Supreme Court of Canada’s biographical core. Social interaction is something that is balanced against this need for withdrawal, something that is in constant tension with it—which echoes the difficulty that many judges have in understanding why someone might have a privacy interest in information that has been voluntarily disclosed to others, or in regards to something that has in some context been made “public.”
There are other alternatives for thinking about the self and privacy. Suppose instead that we took up the challenge posed by some of the first generation philosophers of technology that we need to rethink the modern subject if we are to properly respond to the challenges of technology. Suppose, for example, that instead of the idea of an individual with an inner core transparent to itself upon solitary introspection, we posited a self that is in fact formed through social interaction. The point of privacy would not be to protect the conditions of social withdrawal in order to maintain the integrity of such a self—it would be to protect the conditions of social interaction in order to provide the basis for identity formation in the first place.
I am currently working on outlining an account of privacy such as this. Inspired explicitly by Goffman, but influenced by many others, I want to claim that privacy should be understood in terms of protecting our capacity for self-presentation. This “self” that is presented may or may not be different in relation to different “others,” may or may not be constituted through these relationships, and may or may not vary over time and across contexts in contradictory ways—in other words, it stays far away from positing anything like an “inner zone” or “biographical core.” What becomes important is not the protection of different layers of an already-constituted self but rather an individual’s ability to know the others to whom she presents herself—and even, in some case, to be able to choose these others. For example, if I take a photo of you in a public place and publish it in a magazine I have dramatically changed the nature of the others to whom you were presenting yourself—the “audience” shifts from the other people sharing this public space to the other people reading the magazine. This shift, I want to argue, undermines one’s capacity for self-presentation and therefore raises at least a prima facie privacy claim—even though the photo was taken in “public” and even though it reveals nothing embarrassing or sensitive (I have written elsewhere about the Aubry case, which has these facts).
There is, of course, much more to say and this is what my current work is focusing on. My point in these two blog posts has been to try to show that the first generation of philosophers of technology raise an intriguing challenge to legal theorists regarding the need to examine the view of the self that we adopt in thinking about technological questions. I think that privacy law and theory would do well to rise to the challenge.
Saturday, February 28, 2009
Thursday, February 26, 2009
Are We All Control Freaks Now?
Earlier this month, Facebook quietly changed its terms of service and waded into what I will call the “control wars” over personal information. Facebook’s changes would enhance its control over users posted information, including material that had been deleted. The response was swift and angry. A Facebook Group, “People Against the New Terms of Service,” attracted over 130,000 members to pressure Facebook to revert to its old terms of use. The Electronic Privacy Information Centre (EPIC) threatened to file a complaint with the Federal Trade Commission. Facebook backed down.
This incident is interesting for many reasons. For one, it illustrates public anxieties regarding personal information. Tracked by public surveillance cameras, profiled by marketers, tagged by Facebook friends—increasingly we fear that information and communications technology has placed our personal information beyond our control. And, given that one of the most popular definitions of privacy is “control over personal information”, any loss of control is viewed as a problematic loss of privacy.
The Facebook incident also highlights the accepted solutions to this problem. The way to halt the rapid erosion of privacy is to provide individuals with more control over their personal information. This has both a technological and a legal aspect. The technological aspect can be seen by the use of technology itself (a Facebook group) to mobilize individuals into an effective pressure group. The legal aspect can be seen through the threat of legal action. In fact, EPIC claims that this incident is evidence of the need for more comprehensive privacy laws in the United States. Canada has such legislation, including our federal Personal Information Protection and Electronic Documents Act (PIPEDA), which aims to provide individuals with greater control over the collection, use and disclosure of their personal information. Even before this recent controversy, the Canadian Internet and Public Policy Clinic (CIPPIC) filed a complaint with the federal Privacy Commissioner alleging that Facebook was in violation of its obligations under PIPEDA.
I am a supporter of comprehensive privacy legislation and, as a Facebook user, happy that Facebook reversed its decision. Nonetheless I think we should be concerned about the prevalence of “control” as the paradigm for both the problem of, and solution to, information and communication technology.
What interests me here is the striking parallels between contemporary privacy angst and technological fears from an earlier era. Like the “information age,” the modern industrial age engendered dystopian visions of out-of-control technology, technology that did not simply herald a new age of freedom but rather brought with it new types of threats to human autonomy, health, communities and the environment. This spawned a great deal of academic commentary across many disciplines; I want to focus here specifically on the philosophy of technology and what it can both contribute to, and learn from, the control wars.
Hans Achterhuis usefully distinguishes first and second generation philosophers of technology. Perhaps the most influential philosopher of the first generation is Martin Heidegger. According to Heidegger, the instrumental conception of technology—that technology is simply a means that we create and use to further our chosen ends— blinds us to the true essence of technology. As he famously—and rather cryptically—argued in The Question Concerning Technology, “the essence of technology is by no means anything technological.” Instead, the essence of technology is more akin to what we might now call a cultural paradigm that conditions us to view the world as resources at our disposal. Moreover, for him the essence of technology is intrinsically tied to the project of modernity itself. In this way, his work fits within a general category of primarily European thinkers who made technology an explicit theme in their reflections and who argued—although each in quite different terms—that the significance of modern technology does not lie in specific features of its machinery but rather in a kind of rationality and cultural milieu intimately linked with the project of modernity and the Enlightenment values that animate it but simultaneously threatening to undermine human freedom. In addition to Heidegger, Jacques Ellul, Gabriel Marcel, and the Frankfurt School were all influential in this regard.
Second-generation philosophers of technology share a general rejection of instrumental definitions of technology but have largely tried to distance themselves from the strong dystopian flavour of these earlier more radical techniques. According to these second-generation thinkers, these earlier critiques fail because they are essentialist in talking about “Technology” rather than “technologies,” and determinist in not seeing the myriad ways in which human contexts and values shape and constrain the uses of technology. In a world where modern technology is ubiquitous and most often welcomed, they argue, we need a more nuanced view of technology, one that has a place to laud the victories of technology and a program for technological design that enhances democratic and ethical values. Indeed, as Hans Achterhuis has argued, second-generation philosophers of technology have largely taken an “empirical turn.”
This second-generation empirical turn can enrich legal discussions of technology by opening legal discussion to the insights of theorists from a variety of disciplines who have indicated that technology is in fact not neutral, that it often embodies important social and political values and therefore can have unintended and undesirable effects beyond simply physical consequences. It can also point to the ways in which we have the resources to think about, and build, technologies in a number of different ways and give us a richer basis upon which to think about law’s role in this.
However, in distancing itself from these various elements of earlier critiques, second generation philosophers of technology have largely lost sight of the normative elements of earlier critiques. The danger is that in showing how technologies are shaped by a complex of social forces, as well as how they open up a plurality of options, these theories fall into a kind of descriptive obscurity. Indeed, Langdon Winner accuses some expressions of this “empirical turn” of ignoring—even disdaining—any normative inquiry into technology in favour of highlighting the interpretive flexibility of any particular technology. As Winner argues, the important question is not how technology is constructed but which norms we should invoke to evaluate technologies, their design, implementation, and effects.
This is where legal scholars need to intervene.
What some of the legal debates regarding technology highlight is that it is not clear that the traditional normative strategies we might employ to evaluate technologies are adequate. And many of these normative strategies center on a particular idea of the self. For example, in an earlier posting, Frank Pasquale indicated that the question of the acceptance of self-enhancing technologies is not being driven by the technology itself but rather by a conception of the self that should be questioned. Kieran Tranter wrote of the need for alternative stories of self-creation.
These observations—with which I agree—suggest that we should rethink the empirical turn. What the first generation of philosophers of technology understood was that at the root of their questioning of technology lay the need to question the modern self itself. At the end of the day, this was Heidegger’s message regarding technology: the instrumental definition of technology blinds us to the real essence of technology but the supreme danger of this is that we are thereby also blinded to the true nature of what it means to be a human being. Discussions of controlling technology – through law or other means—misses this entirely and in fact risks perpetuating a problematic view of the self.
In my next post, I will try to show how this insight can be helpful in understanding the limits of a privacy paradigm centered on control of personal information even if we don’t return to the radical excesses of first generation philosophy of technology.
But in closing let me respond to one possible objection to my claim that law is an important site for normative engagement with technology and, in particular, claims of control. One might ask whether law itself is a technology and therefore not something that can be easily and straightforwardly enlisted to judge other technologies. Ellul, who has already been mentioned in a number of previous posts, himself wrote of “judicial technique,” placing it in the realm of calculative rationality that characterizes other techniques. Nonetheless, because law is a site of justice it is also in a kind of privileged position in relation to technology as that which can never fully become technique. He argues:
Judicial technique is in every way much less self-confident than the other techniques, because it is impossible to transform the notion of justice into technical elements. Despite what philosophers may say, justice is not a thing which can be grasped or fixed. If one pursues genuine justice (and not some automatism or egalitarianism), one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist. Moreover, justice is not in the service of the state; it even claims the right to judge the state. Law created as a function of justice eludes the state, which can neither create nor modify it. The state of course sanctions this situation only to the degree that it has little power or has not yet become fully self-conscious; or to the degree that its jurists are not exclusively technical rationalists and subordinated to efficient results. Under these conditions, technique assumes the role of a handmaiden modestly resigned to the fact that she does not automatically get what she desires. (The Technological Society, p. 292)
One might say that justice eludes control and we would do well to attend to this and its significance.
This incident is interesting for many reasons. For one, it illustrates public anxieties regarding personal information. Tracked by public surveillance cameras, profiled by marketers, tagged by Facebook friends—increasingly we fear that information and communications technology has placed our personal information beyond our control. And, given that one of the most popular definitions of privacy is “control over personal information”, any loss of control is viewed as a problematic loss of privacy.
The Facebook incident also highlights the accepted solutions to this problem. The way to halt the rapid erosion of privacy is to provide individuals with more control over their personal information. This has both a technological and a legal aspect. The technological aspect can be seen by the use of technology itself (a Facebook group) to mobilize individuals into an effective pressure group. The legal aspect can be seen through the threat of legal action. In fact, EPIC claims that this incident is evidence of the need for more comprehensive privacy laws in the United States. Canada has such legislation, including our federal Personal Information Protection and Electronic Documents Act (PIPEDA), which aims to provide individuals with greater control over the collection, use and disclosure of their personal information. Even before this recent controversy, the Canadian Internet and Public Policy Clinic (CIPPIC) filed a complaint with the federal Privacy Commissioner alleging that Facebook was in violation of its obligations under PIPEDA.
I am a supporter of comprehensive privacy legislation and, as a Facebook user, happy that Facebook reversed its decision. Nonetheless I think we should be concerned about the prevalence of “control” as the paradigm for both the problem of, and solution to, information and communication technology.
What interests me here is the striking parallels between contemporary privacy angst and technological fears from an earlier era. Like the “information age,” the modern industrial age engendered dystopian visions of out-of-control technology, technology that did not simply herald a new age of freedom but rather brought with it new types of threats to human autonomy, health, communities and the environment. This spawned a great deal of academic commentary across many disciplines; I want to focus here specifically on the philosophy of technology and what it can both contribute to, and learn from, the control wars.
Hans Achterhuis usefully distinguishes first and second generation philosophers of technology. Perhaps the most influential philosopher of the first generation is Martin Heidegger. According to Heidegger, the instrumental conception of technology—that technology is simply a means that we create and use to further our chosen ends— blinds us to the true essence of technology. As he famously—and rather cryptically—argued in The Question Concerning Technology, “the essence of technology is by no means anything technological.” Instead, the essence of technology is more akin to what we might now call a cultural paradigm that conditions us to view the world as resources at our disposal. Moreover, for him the essence of technology is intrinsically tied to the project of modernity itself. In this way, his work fits within a general category of primarily European thinkers who made technology an explicit theme in their reflections and who argued—although each in quite different terms—that the significance of modern technology does not lie in specific features of its machinery but rather in a kind of rationality and cultural milieu intimately linked with the project of modernity and the Enlightenment values that animate it but simultaneously threatening to undermine human freedom. In addition to Heidegger, Jacques Ellul, Gabriel Marcel, and the Frankfurt School were all influential in this regard.
Second-generation philosophers of technology share a general rejection of instrumental definitions of technology but have largely tried to distance themselves from the strong dystopian flavour of these earlier more radical techniques. According to these second-generation thinkers, these earlier critiques fail because they are essentialist in talking about “Technology” rather than “technologies,” and determinist in not seeing the myriad ways in which human contexts and values shape and constrain the uses of technology. In a world where modern technology is ubiquitous and most often welcomed, they argue, we need a more nuanced view of technology, one that has a place to laud the victories of technology and a program for technological design that enhances democratic and ethical values. Indeed, as Hans Achterhuis has argued, second-generation philosophers of technology have largely taken an “empirical turn.”
This second-generation empirical turn can enrich legal discussions of technology by opening legal discussion to the insights of theorists from a variety of disciplines who have indicated that technology is in fact not neutral, that it often embodies important social and political values and therefore can have unintended and undesirable effects beyond simply physical consequences. It can also point to the ways in which we have the resources to think about, and build, technologies in a number of different ways and give us a richer basis upon which to think about law’s role in this.
However, in distancing itself from these various elements of earlier critiques, second generation philosophers of technology have largely lost sight of the normative elements of earlier critiques. The danger is that in showing how technologies are shaped by a complex of social forces, as well as how they open up a plurality of options, these theories fall into a kind of descriptive obscurity. Indeed, Langdon Winner accuses some expressions of this “empirical turn” of ignoring—even disdaining—any normative inquiry into technology in favour of highlighting the interpretive flexibility of any particular technology. As Winner argues, the important question is not how technology is constructed but which norms we should invoke to evaluate technologies, their design, implementation, and effects.
This is where legal scholars need to intervene.
What some of the legal debates regarding technology highlight is that it is not clear that the traditional normative strategies we might employ to evaluate technologies are adequate. And many of these normative strategies center on a particular idea of the self. For example, in an earlier posting, Frank Pasquale indicated that the question of the acceptance of self-enhancing technologies is not being driven by the technology itself but rather by a conception of the self that should be questioned. Kieran Tranter wrote of the need for alternative stories of self-creation.
These observations—with which I agree—suggest that we should rethink the empirical turn. What the first generation of philosophers of technology understood was that at the root of their questioning of technology lay the need to question the modern self itself. At the end of the day, this was Heidegger’s message regarding technology: the instrumental definition of technology blinds us to the real essence of technology but the supreme danger of this is that we are thereby also blinded to the true nature of what it means to be a human being. Discussions of controlling technology – through law or other means—misses this entirely and in fact risks perpetuating a problematic view of the self.
In my next post, I will try to show how this insight can be helpful in understanding the limits of a privacy paradigm centered on control of personal information even if we don’t return to the radical excesses of first generation philosophy of technology.
But in closing let me respond to one possible objection to my claim that law is an important site for normative engagement with technology and, in particular, claims of control. One might ask whether law itself is a technology and therefore not something that can be easily and straightforwardly enlisted to judge other technologies. Ellul, who has already been mentioned in a number of previous posts, himself wrote of “judicial technique,” placing it in the realm of calculative rationality that characterizes other techniques. Nonetheless, because law is a site of justice it is also in a kind of privileged position in relation to technology as that which can never fully become technique. He argues:
Judicial technique is in every way much less self-confident than the other techniques, because it is impossible to transform the notion of justice into technical elements. Despite what philosophers may say, justice is not a thing which can be grasped or fixed. If one pursues genuine justice (and not some automatism or egalitarianism), one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist. Moreover, justice is not in the service of the state; it even claims the right to judge the state. Law created as a function of justice eludes the state, which can neither create nor modify it. The state of course sanctions this situation only to the degree that it has little power or has not yet become fully self-conscious; or to the degree that its jurists are not exclusively technical rationalists and subordinated to efficient results. Under these conditions, technique assumes the role of a handmaiden modestly resigned to the fact that she does not automatically get what she desires. (The Technological Society, p. 292)
One might say that justice eludes control and we would do well to attend to this and its significance.
Wednesday, February 25, 2009
Introducing Lisa Austin
Thanks to Lyria and all of the previous bloggers for their many thought-provoking posts. We're now in the home stretch with two bloggers left to go.
Our next blogger, Lisa Austin from the University of Toronto, conducts research in areas that include privacy law and the ethical and social justice issues raised by emerging technologies. A recent work focuses on the challenges to privacy rights and interests presented by state information-sharing practices. Lisa is currently working on a research project involving privacy and identity.
Our next blogger, Lisa Austin from the University of Toronto, conducts research in areas that include privacy law and the ethical and social justice issues raised by emerging technologies. A recent work focuses on the challenges to privacy rights and interests presented by state information-sharing practices. Lisa is currently working on a research project involving privacy and identity.
Monday, February 23, 2009
Technology bias
In her comment on my previous post, Gaia Bernstein asks an important question:
No single article or author writing about virtual worlds is doing any wrong or harm. Having read 126 such articles, many of them are very interesting - as I have said previously, I love legal hypotheticals involving new technologies. I am not the only one - analysis of legal issues surrounding new technologies (from virtual worlds to genetics) can often be found in the mainstream media. And no-one is harmed by an exploration of how transactions concerning a moon platform or a virtual mace are classified from a legal perspective.
But there are concerns that result from legal scholars' interest in technology. The first is that raised by Beebe, it allows lawyers to pretend that law is still in control. We "domesticate" technological innovation by analysing it in legal terms.
Interest of this sort is usually short-lived, so that we still have cyberlaw (though much of this is being assimilated) and virtual law, but no longer railroad law. And we now expore property concepts by testing them against virtual objects rather than space platforms. If the point is to understand "property" better, why no longer space platforms?
The other concern is that legal scholars might focus on technological aspects of particular issues, while ignoring broader questions. It is one thing to say that the law can control technological monsters, but another to see only technological monsters.
For example, technology might be portrayed as a “monster” while analogous non-technological threats recede into the background. Consider Frank Pasquale’s discussion on this blog and in a previous article of the dangers of technologies that offer competitive advantage. As I said in my comment, I personally find the idea of neurocosmetics pretty horrific. But I have no trouble using parenting techniques to manipulate my childrens' personalities. In using such techniques, I am taking advantage of my children’s neuroplasticity to alter (to some extent at least) their future "selves." In this way, parenting can operate as an alternative path to the ends achieved by neurocosmetics. But parenting is not “scary,” not even if I know that it gives some children an “advantage” over children whose parents, perhaps due to socio-economic disadvantage, lack the resources to learn and utilise various parenting strategies. Which leads back to the question, if the concern is competitive advantage, is it reasonable to focus on the newest technological means of gaining a competitive advantage? Frank would say "yes" because
Even where the problem is not containing technological "monsters," but merely exploring uncertainties or filling legal gaps, it is important to justify a technological focus. I have tried to do this in Recurring Dilemmas and Why Have a Theory of Law and Technological Change. Others will judge my efforts. One interesting observation I made, though, was the tendency for lawmakers to use technological change as an excuse to change a law where that is not the real or only reason they wish to do so. We are used to the story of law falling behind technology and needing to be updated. While this narrative is sometimes pertinent, it is important to remain vigilant as to the bias it can cause. In some cases, portraying a new technology as the problematic element is used to advance a particular perspective. For example, digital copying and peer-to-peer technologies have been portrayed by organisations like the RIAA as requiring "updating" of copyright law (eg the DMCA). The narrative is one of an existing status quo, upset by technological change, requiring new laws to ensure reversion to the status quo. The DMCA may or may not be a good idea, but portraying technology as the disruptive element in need of a legal "fix" is not the only story to be told.
So, what lessons to draw? I am still unsure which aspects of virtual world scholarship can fairly be distinguished from golden age space law. But I think it is an important question to ask. Given our autonomy, why do we so often choose to explore legal issues surrounding new technologies? What justifications can we offer to counter any dangers of an overly technological focus?
The question is should the autonomy of scholars be constrained and their efforts be directed to areas of law where their insights would be most effective?Actually, I agree with Gaia, that the answer is "no." I am not attempting to cramp the autonomy of legal scholars to write about what they wish, only to encourage greater self-reflection.
No single article or author writing about virtual worlds is doing any wrong or harm. Having read 126 such articles, many of them are very interesting - as I have said previously, I love legal hypotheticals involving new technologies. I am not the only one - analysis of legal issues surrounding new technologies (from virtual worlds to genetics) can often be found in the mainstream media. And no-one is harmed by an exploration of how transactions concerning a moon platform or a virtual mace are classified from a legal perspective.
But there are concerns that result from legal scholars' interest in technology. The first is that raised by Beebe, it allows lawyers to pretend that law is still in control. We "domesticate" technological innovation by analysing it in legal terms.
Interest of this sort is usually short-lived, so that we still have cyberlaw (though much of this is being assimilated) and virtual law, but no longer railroad law. And we now expore property concepts by testing them against virtual objects rather than space platforms. If the point is to understand "property" better, why no longer space platforms?
The other concern is that legal scholars might focus on technological aspects of particular issues, while ignoring broader questions. It is one thing to say that the law can control technological monsters, but another to see only technological monsters.
For example, technology might be portrayed as a “monster” while analogous non-technological threats recede into the background. Consider Frank Pasquale’s discussion on this blog and in a previous article of the dangers of technologies that offer competitive advantage. As I said in my comment, I personally find the idea of neurocosmetics pretty horrific. But I have no trouble using parenting techniques to manipulate my childrens' personalities. In using such techniques, I am taking advantage of my children’s neuroplasticity to alter (to some extent at least) their future "selves." In this way, parenting can operate as an alternative path to the ends achieved by neurocosmetics. But parenting is not “scary,” not even if I know that it gives some children an “advantage” over children whose parents, perhaps due to socio-economic disadvantage, lack the resources to learn and utilise various parenting strategies. Which leads back to the question, if the concern is competitive advantage, is it reasonable to focus on the newest technological means of gaining a competitive advantage? Frank would say "yes" because
Technology is often far more sudden, effective, and commodifiable than social or cultural methods of accomplishing ends.This suggests that technological means to achieving competitive advantage are of more concern than non-technological means. But it might be argued that a technological focus also deflects attention away from the (currently) greater social problem. I would perhaps justify a technological focus in a different way in this case - absent a rejection of capitalism in its current form, the only regulation likely is restrictions on technological means of gaining competitive advantage. Thus I am not saying that a technological focus might not be constructive nor that a particular article cannot choose to focus on technological aspects of a problem. But by focusing on the technological, we should not ignore the non-technological. In other words, it is important to consider the broader question about competitive advantage, in particular any other aspects of it that can realistically be limited. We should still consider, for example, whether students ought to be obliged to disclose the use of tutoring colleges when applying for university or jobs.
Even where the problem is not containing technological "monsters," but merely exploring uncertainties or filling legal gaps, it is important to justify a technological focus. I have tried to do this in Recurring Dilemmas and Why Have a Theory of Law and Technological Change. Others will judge my efforts. One interesting observation I made, though, was the tendency for lawmakers to use technological change as an excuse to change a law where that is not the real or only reason they wish to do so. We are used to the story of law falling behind technology and needing to be updated. While this narrative is sometimes pertinent, it is important to remain vigilant as to the bias it can cause. In some cases, portraying a new technology as the problematic element is used to advance a particular perspective. For example, digital copying and peer-to-peer technologies have been portrayed by organisations like the RIAA as requiring "updating" of copyright law (eg the DMCA). The narrative is one of an existing status quo, upset by technological change, requiring new laws to ensure reversion to the status quo. The DMCA may or may not be a good idea, but portraying technology as the disruptive element in need of a legal "fix" is not the only story to be told.
So, what lessons to draw? I am still unsure which aspects of virtual world scholarship can fairly be distinguished from golden age space law. But I think it is an important question to ask. Given our autonomy, why do we so often choose to explore legal issues surrounding new technologies? What justifications can we offer to counter any dangers of an overly technological focus?
Saturday, February 21, 2009
Turning the lenses inward
With my posts, I am going to do a different blend of the concepts autonomy, law, technology and explore the reasons why legal scholars use their autonomy to focus on issues surrounding new technologies. By “issues surrounding new technologies” I don’t mean why are we here discussing law and technology theory (there are, after all, relatively few of us, and many justifications we could offer for our choice of scholarship, some of which were collected in the MJLST symposium). Rather, I am referring to the vast fields of scholarship exploring particular legal issues surrounding particular technologies.
In my first post, I will set up the question, and in the second go some way towards an answer. One caution – I have much further to go with this project before producing a piece for publication, so my ideas are still tentative. Hopefully, these two blogs will generate critique and suggestions! But on with the show…
Beebe, in an excellent note entitled Law’s Empire and the Final Frontier: Legalizing the Future in the Earlyorpus Juris Spatialis (108 Yale L.J. 1737), discusses the fate of “space law.” He describes the “Golden Age” of space law in which lawyers debated such questions as whether title to a space platform would be transferred by bill of sale or deed. Far from lagging behind technology, lawyers were leaping ahead. He argues that lawyers’ focus on outer space was an attempt, as Kieran Tranter might put it, to ensure that the “law” story won over the “technology” story, and hence that lawyers had a place in the future.
Note that Beebe does not deny that new technologies generate new legal issues. In an earlier piece, I categorised legal issues generated by technological change. It might in fact be uncertain, on the basis of pre-existing law, how title to a space platform would be transferred. Beebe’s point is not that this issue was meaningless or easy, but rather that the purpose of discussing it is to assert the dominance of a legal narrative in a technological future rather than to set out an authoritative, coherent statement of legal doctrine. “Space law” still exists, although Beebe distinguishes modern space law from “golden age” space law by describing the former as “a highly technical discourse spoken primarily by specialist practitioners.”
Might today's legal scholars, with the freedom to discuss whatever they wish, fall into a similar trap as "golden age" space lawyers? One area where this might be happening is in the scholarship surrounding legal issues in virtual worlds. I should start by admitting my own musings on this topic in an article on the scope of property law which employed virtual property as one of its examples. So, why am I worried about the parallels? First, it is not self-evident why legal scholars would be concerned with virtual worlds. Unlike a technology such as cloning, there is no “obvious” role for law to play. Second, people spending time and doing business in constructed virtual worlds arguably pose a similar "threat" to lawyers to that posed by the possibility of space travel in the 1960s.
With the help of a research assistant, I am in the process of compiling a list of all articles dealing with legal issues in virtual worlds published (or appearing on-line) before the end of 2008. We have over 100 articles dealing with legal issues in virtual worlds. I am not currently including books such as that by Duranske on Virtual Law (published by the American Bar Association). As well as getting a sense of numbers, I have “coded” them for explanations offered as to why the issue being discussed is important or urgent. Some articles gave more than one reason, in which case more than one coding was allocated. My “coding” is necessarily subjective (as the justification for exploring issues in virtual worlds was often implied from introductions rather than explicitly identified as a rationale). But what I wanted was a sense of whether there was any expressed need for legal scholarship on virtual worlds that could take it outside the realm of Beebe's concern.
Most articles offered at least some rationale for finding the topic of interest. A few (including my own) were concerned with broader legal development, using virtual worlds as a launching pad to explore more general legal issues. Of the ones that considered the resolution of legal issues in virtual worlds important for themselves, the most popular reason was the rate of growth of virtual worlds, by reference to changes in population or profit. A few raised the need to ensure continuing growth and productivity of virtual worlds as a rationale for their discussion. Government and judicial activity was sometimes mentioned as justifying legal analysis. Quite a few articles referred to the fact that virtual world transactions have corresponding “real money” values, with some more referring to “real world” effects of virtual activity more broadly. Some articles referred to the importance of virtual worlds in the lives of (at least some of) their residents. There is also a cumulative effect, with some articles referring to previous media or academic interest in virtual worlds as a rationale for further discussion of virtual worlds.
So, is there anything in all this that might explain the popular focus on legal issues in virtual worlds? Some, still tentative, thoughts:
Growth: The growth of virtual worlds might be important for two (related) reasons: (1) if there are legal dilemmas, it is possible that more and more people will encounter them, and (2) if laws are going to be made, they need to be made soon before the technological status quo becomes entrenched.
The first of these is true, but statements about the number of citizens in Second Life is no more impressive than lists of man's accomplishments in outer space in the 1970s. Neither tells us whether resolution of the legal issues is timely or premature. Growth itself might signal either - ongoing growth and development might make early legal responses obsolete. Growth might also be illusory - a passing fad.
The second of these does seek to explain the urgency of attention to legal issues. However, “growth” as such may not be the relevant factor. According to Gaia Bernstein, diffusion patterns can signal a need for urgent consideration of legal issues. Diffusion patterns are not, however, mere reference to rate of uptake but rather features such as centralisation and the existence of a critical mass point. Although decentralised, the fate of virtual worlds (in terms of critical mass point) is less clear than the fate of the Internet discussed by Gaia in her paper. However, demonstration that the diffusion pattern of virtual worlds made particular legal problems more urgent would satisfactorily distinguish virtual law from space law.
Technology promotion: Where a technology is independently desirable, but diffusion is stymied for an external reason, then law reform to remove the blockage might be desirable. Gaia Bernstein gives an example of this in her discussion of privacy concerns inhibiting the diffusion of genetic testing technologies. Whether this scenario (or something similar) applies in the case of virtual worlds would require demonstration. I am not so sure that promoting virtual worlds is a high government priority right now anyway.
Government and judicial activity: Certainly, a judicial decision, proposed law or proposed agency action can be a good reason for legal commentary. However, in the case of virtual worlds, few decisions and little action tends to lead to plenty of commentary. Bragg v Linden Labs only reached the interlocutory stage before being settled, yet academic commentary is plentiful.
Real world implications (including the possibility of exchange between virtual currency and real currency): The fact that actions in virtual worlds can have real world implications is generally a pre-requisite for their being of interest to lawyers at all. However, given the vast amounts of possible activity that has implications, including financial implications, this cannot be a reason in itself. However, if for example large amounts of money depended on the answer to a legal issue arising in virtual worlds, that could justify further exploration. Some virtual worlds literature falls into this category.
Importance to individuals using the technology: This seems a good reason to resolve legal issues surrounding virtual worlds. If the lives of many individuals would be enhanced by particular legal treatment of virtual worlds, then advocating such treatment seems sensible. Of course, ideally, one would have empirical proof of what legal issues virtual citizens are concerned about, rather than mere supposition.
In summary, there are some glimmers of hope that virtual law scholarship will turn out to be less humorous in retrospect than "golden age" space law scholarship, although the jury is still out. Most likely, as in the case of space law, some aspects of virtual law jurisprudence will become relevant and important, perhaps confined to true specialists. Other areas may seem, in retrospect, a distraction, motivated by legal academics’ desire to explore strange new worlds.
But, if scholars can do what we like, why does this matter? The answer (or at least further musings) will have to wait until my next post.
In my first post, I will set up the question, and in the second go some way towards an answer. One caution – I have much further to go with this project before producing a piece for publication, so my ideas are still tentative. Hopefully, these two blogs will generate critique and suggestions! But on with the show…
Beebe, in an excellent note entitled Law’s Empire and the Final Frontier: Legalizing the Future in the Earlyorpus Juris Spatialis (108 Yale L.J. 1737), discusses the fate of “space law.” He describes the “Golden Age” of space law in which lawyers debated such questions as whether title to a space platform would be transferred by bill of sale or deed. Far from lagging behind technology, lawyers were leaping ahead. He argues that lawyers’ focus on outer space was an attempt, as Kieran Tranter might put it, to ensure that the “law” story won over the “technology” story, and hence that lawyers had a place in the future.
Note that Beebe does not deny that new technologies generate new legal issues. In an earlier piece, I categorised legal issues generated by technological change. It might in fact be uncertain, on the basis of pre-existing law, how title to a space platform would be transferred. Beebe’s point is not that this issue was meaningless or easy, but rather that the purpose of discussing it is to assert the dominance of a legal narrative in a technological future rather than to set out an authoritative, coherent statement of legal doctrine. “Space law” still exists, although Beebe distinguishes modern space law from “golden age” space law by describing the former as “a highly technical discourse spoken primarily by specialist practitioners.”
Might today's legal scholars, with the freedom to discuss whatever they wish, fall into a similar trap as "golden age" space lawyers? One area where this might be happening is in the scholarship surrounding legal issues in virtual worlds. I should start by admitting my own musings on this topic in an article on the scope of property law which employed virtual property as one of its examples. So, why am I worried about the parallels? First, it is not self-evident why legal scholars would be concerned with virtual worlds. Unlike a technology such as cloning, there is no “obvious” role for law to play. Second, people spending time and doing business in constructed virtual worlds arguably pose a similar "threat" to lawyers to that posed by the possibility of space travel in the 1960s.
With the help of a research assistant, I am in the process of compiling a list of all articles dealing with legal issues in virtual worlds published (or appearing on-line) before the end of 2008. We have over 100 articles dealing with legal issues in virtual worlds. I am not currently including books such as that by Duranske on Virtual Law (published by the American Bar Association). As well as getting a sense of numbers, I have “coded” them for explanations offered as to why the issue being discussed is important or urgent. Some articles gave more than one reason, in which case more than one coding was allocated. My “coding” is necessarily subjective (as the justification for exploring issues in virtual worlds was often implied from introductions rather than explicitly identified as a rationale). But what I wanted was a sense of whether there was any expressed need for legal scholarship on virtual worlds that could take it outside the realm of Beebe's concern.
Most articles offered at least some rationale for finding the topic of interest. A few (including my own) were concerned with broader legal development, using virtual worlds as a launching pad to explore more general legal issues. Of the ones that considered the resolution of legal issues in virtual worlds important for themselves, the most popular reason was the rate of growth of virtual worlds, by reference to changes in population or profit. A few raised the need to ensure continuing growth and productivity of virtual worlds as a rationale for their discussion. Government and judicial activity was sometimes mentioned as justifying legal analysis. Quite a few articles referred to the fact that virtual world transactions have corresponding “real money” values, with some more referring to “real world” effects of virtual activity more broadly. Some articles referred to the importance of virtual worlds in the lives of (at least some of) their residents. There is also a cumulative effect, with some articles referring to previous media or academic interest in virtual worlds as a rationale for further discussion of virtual worlds.
So, is there anything in all this that might explain the popular focus on legal issues in virtual worlds? Some, still tentative, thoughts:
Growth: The growth of virtual worlds might be important for two (related) reasons: (1) if there are legal dilemmas, it is possible that more and more people will encounter them, and (2) if laws are going to be made, they need to be made soon before the technological status quo becomes entrenched.
The first of these is true, but statements about the number of citizens in Second Life is no more impressive than lists of man's accomplishments in outer space in the 1970s. Neither tells us whether resolution of the legal issues is timely or premature. Growth itself might signal either - ongoing growth and development might make early legal responses obsolete. Growth might also be illusory - a passing fad.
The second of these does seek to explain the urgency of attention to legal issues. However, “growth” as such may not be the relevant factor. According to Gaia Bernstein, diffusion patterns can signal a need for urgent consideration of legal issues. Diffusion patterns are not, however, mere reference to rate of uptake but rather features such as centralisation and the existence of a critical mass point. Although decentralised, the fate of virtual worlds (in terms of critical mass point) is less clear than the fate of the Internet discussed by Gaia in her paper. However, demonstration that the diffusion pattern of virtual worlds made particular legal problems more urgent would satisfactorily distinguish virtual law from space law.
Technology promotion: Where a technology is independently desirable, but diffusion is stymied for an external reason, then law reform to remove the blockage might be desirable. Gaia Bernstein gives an example of this in her discussion of privacy concerns inhibiting the diffusion of genetic testing technologies. Whether this scenario (or something similar) applies in the case of virtual worlds would require demonstration. I am not so sure that promoting virtual worlds is a high government priority right now anyway.
Government and judicial activity: Certainly, a judicial decision, proposed law or proposed agency action can be a good reason for legal commentary. However, in the case of virtual worlds, few decisions and little action tends to lead to plenty of commentary. Bragg v Linden Labs only reached the interlocutory stage before being settled, yet academic commentary is plentiful.
Real world implications (including the possibility of exchange between virtual currency and real currency): The fact that actions in virtual worlds can have real world implications is generally a pre-requisite for their being of interest to lawyers at all. However, given the vast amounts of possible activity that has implications, including financial implications, this cannot be a reason in itself. However, if for example large amounts of money depended on the answer to a legal issue arising in virtual worlds, that could justify further exploration. Some virtual worlds literature falls into this category.
Importance to individuals using the technology: This seems a good reason to resolve legal issues surrounding virtual worlds. If the lives of many individuals would be enhanced by particular legal treatment of virtual worlds, then advocating such treatment seems sensible. Of course, ideally, one would have empirical proof of what legal issues virtual citizens are concerned about, rather than mere supposition.
In summary, there are some glimmers of hope that virtual law scholarship will turn out to be less humorous in retrospect than "golden age" space law scholarship, although the jury is still out. Most likely, as in the case of space law, some aspects of virtual law jurisprudence will become relevant and important, perhaps confined to true specialists. Other areas may seem, in retrospect, a distraction, motivated by legal academics’ desire to explore strange new worlds.
But, if scholars can do what we like, why does this matter? The answer (or at least further musings) will have to wait until my next post.
Introducing Lyria Bennett Moses
Our next blogger, Lyria Bennett Moses, hails from the University of New South Wales.
An earlier paper by Lyria discussed how the law deals with 'recurring dilemmas' when confronted with new technologies as well as the ways that technology change differs from other social changes that challenge traditional legal interests. In this paper and elsewhere, Lyria has been developing a framework for legal analysis at the intersection of law and technology.
Her earlier posts at this blog can be found here.
An earlier paper by Lyria discussed how the law deals with 'recurring dilemmas' when confronted with new technologies as well as the ways that technology change differs from other social changes that challenge traditional legal interests. In this paper and elsewhere, Lyria has been developing a framework for legal analysis at the intersection of law and technology.
Her earlier posts at this blog can be found here.
Friday, February 20, 2009
Two Technological Tales: Email and Minitel
We tend to think that a technology which failed to diffuse must have been a bad idea. But, there are technologies, which undergo long social adoption processes and eventually achieve mainstream adoption. These long social adoption processes, if at all acknowledged, are usually attributed off-handedly to technical issues. Yet, diffusion delays are often related to a complex interaction of factors, many of which are not related to technical difficulties but to individual adoption decisions. In this post I want to use the stories of two eventually successful technologies, which underwent long social adoption processes in order to underscore the need to focus legal attention and resources on the user as an adopter.
The first story is about videotext systems. We often marvel at how the Internet transformed our lives: from the abundance of information to the conveniences of online shopping. The Internet has reached mainstream adoption in the mid-1990s. But, few realize that the majority of the French population has enjoyed the conveniences of the Internet from the early 1980s through use of a videotext system called Minitel. Minitel consisted of a small monitor and keyboard, which used the phone connection to transmit information. Minitel was used for online banking, travel reservations, information services, online grocery shopping and messaging services. All in all it encompassed many of the features we have come to associate with the Internet.
While the Minitel was introduced in France in 1982 and reached mainstream adoption by 1985, similar videotext systems were launched in the United States, most European countries and Japan, yet these systems were not adopted. The residents of most of the world had to wait until the mid-1990s to enjoy the conveniences the French enjoyed a decade earlier.
The second tale is about the email. Most people consider the email to be a 1990s technology. But, it was in 1971 that the first email was sent between computers. The major technological difficulties were overcome by the early 1980s with the adoption of the uniform TCP/IP standard. Commercial email, in fact, existed during the 1970s. The Queen of England sent her first email over the Atlantic in 1976. Jimmy Carter’s campaign also used email in 1976. Then why have most of us started using email only during the mid-1990s? Technological issues alone fail to account for the time lag.
The stories of the videotext systems and the email leave many questions unanswered. What prevented users from adopting these technologies earlier? What could have been done to accelerate diffusion? I hope to further explore these issues. But, my main goal in this post was to use these stories to illustrate the importance of shifting the legal regime’s attention and resources toward regulating user adoption behavior because of its important role in technological diffusion delays.
Subscribe to:
Posts (Atom)