Author: Deven Desai

0

Exploration and Exploitation – Ideas from Business and Computer Science

One of the key reasons I joined GA Tech and the Scheller College of Business is that I tend to draw on technology and business literature, and GA Tech is a great place for both. My current paper Exploration and Exploitation: An Essay on (Machine) Learning, Algorithms, and Information Provision draws on both these literatures. A key work on the idea of exploration versus exploitation in the business literature is James G. March, Exploration and Exploitation in Organizational Learning, 2 ORG. SCI. 71 (1989) which as far as I can tell has not been picked up in the legal literature. A good follow up to that paper is Anil K. Gupta, Ken Smith, and Christina Shalley, The Interplay Between Exploration and Exploitation, 49 ACAD. MGMT. J. 693 (2006). I had come upon the issue as a computer science question when working on a draft of my paper Constitutional Limits on Surveillance: Associational Freedom in the Age of Data Hoarding. That paper was part of my thoughts on artificial intelligence, algorithms, and the law. In the end, the material did not fit there, but it fits the new work. And as I have started to connect with folks in the machine learning group at GA Tech, I have been able to press on how this idea comes up in technology and computer science. The paper has benefitted from feedback from Danielle Citron, James Grimmelmann, and Peter Swire. I also offer many thanks to the Loyola University Chicago Law Journal. The paper started as a short piece (I think I wanted to stay at about five to eight thousand words), but as it evolved, the editors were most gracious in letting me use an asynchronous editing process to hit the final 18,000 or so total word count.

I think the work speaks to general issues of information provision and also applies to current issues regarding the way news and online competition work. As one specific matter, I take on the idea of serendipity which I think “is a seductive, overstated idea. Serendipity works because of relevancy.” I offer the idea of salient serendipity to clarify what type of serendipity matters. The abstract is below.

Abstract:
Legal and regulatory understandings of information provision miss the importance of the exploration-exploitation dynamic. This Essay argues that is a mistake and seeks to bring this perspective to the debate about information provision and competition. A general, ongoing problem for an individual or an organization is whether to stay with a familiar solution to a problem or try new options that may yield better results. Work in organizational learning describes this problem as the exploration-exploitation dilemma. Understanding and addressing that dilemma has become a key part of an algorithmic approach to computation, machine learning, as it is applied to information provision. In simplest terms, even if one achieves success with one path, failure to try new options means one will be stuck in a local equilibrium while others find paths that yield better results and displace one’s original success. This dynamic indicates that an information provider has to provide new options and information to users, because a provider must learn and adapt to users’ changing interests in both the type of information they desire and how they wish to interact with information.

Put differently, persistent concerns about the way in which news reaches users (the so-called “filter bubble” concern) and the way in which online shopping information is found (a competition concern) can be understood as market failures regarding information provision. The desire seems to be to ensure that new information reaches people, because that increases the potential for new ideas, new choices, and new action. Although these desired outcomes are good, current criticisms and related potential solutions misunderstand the nature of information users and especially information provision, and miss an important point. Both information users and providers sort and filter as a way to enable better learning, and learning is an ongoing process that requires continual changes to succeed. From an exploration- exploitation perspective, a user or an incumbent may remain isolated or offer the same information provision but neither will learn. In that case, whatever short-term success either enjoys is likely to face leapfrogging by those who experiment through exploration and exploitation.

0

MLAT – Not a Muscle Group Nonetheless Potentially Powerful

MLAT. I encountered this somewhat obscure thing (Mutual Legal Assistance Treaty) when I was in practice and needed to serve someone in Europe. I recall it was a cumbersome process and thinking that I was happy we did not seem to have to use it often (in fact the one time). Today, however, as my colleagues Peter Swire and Justin Hemmings argue in their paper, Stakeholders in Reform of the Global System for Mutual Legal Assistance, the MLAT process is quite important.

In simplest terms, if a criminal investigation in say France needs an email and it is stored in the U.S.A., the French authorities ask the U.S. ones for aid. If the U.S. agency that processes the request agrees there is a legal basis for the request, it and other groups seek a court order. If that is granted, the order would be presented to the company. Once records are obtained, there is further review to ensure “compliance U.S. law.” Then the records would go to France. As Swire and Hemmings note, the process averages 10 months. For a civil case that is long, but for criminal cases that is not workable. And as the authors put it, “the once-unusual need for an MLAT request becomes routine for records that are stored in the cloud and are encrypted in transit.”

Believe it or not, this issue touches on major Internet governance issues. The slowness and the new needs are fueling calls for having the ITU govern the Internet and access to evidence issues (a model according to the paper favored by Russia and others). Simpler but important ideas such as increased calls for data localization also flow from the difficulties the paper identifies. As the paper details, the players–non-U.S. governments, the U.S. government, tech companies, and civil society groups–each have goals and perspectives on the issue.

So for those interested in Internet governance, privacy, law enforcement, and multi-stakeholder processes, the MLAT process and this paper on it offer a great high-level view of the many factors at play in those issues for both a specific topic and larger, related ones as well.

4

Philip K. Dick – Most Important SciFi Author of the 20th Century?

Philip K. Dick may be the most important sci-fi author of the 20th Century akin to Verne and Wells in vision and contemporary relevance well after they wrote. Do Androids Dream of Electric Sheep (Blade Runner), We Can Remember It For You Wholesale (Total Recall, twice), Minority Report (Minority Report, film and TV), Paycheck (Paycheck), A Scanner Darkly (A Scanner Darkly), Adjustment Team (The Adjustment Bureau), and now The Man in the High Castle as an Amazon TV show is just a partial list of Philip K Dick’s work that has been adapted. Although Amazon does not usually release its streaming numbers, The Man in the High Castle has become its “most-streamed original show, overtaking shows like the detective-centric Bosch and Jill Soloway’s feted dramedy Transparent.” The popularity is not the point. As a fan of Dick’s work Ubik and even Valis (though that one is much work to read) both of which have not been adapted to the screen, I am saying that Dick’s novels and short stories did what great sci-fi does. They use technology and maybe some fantasy to comment on where society is headed and how things might evolve. I think it was Dan Solove who once said to me that Dick’s work fits his era, and others in, I think Dan said, the New School were working on the same ideas (apologies, Dan, if I am mistaken about what you said). Regardless of who or what school treads the same area as Dick, for me something about his work catches attention and highlights the way we live more than others.

Take Do Androids Dream of Electric Sheep, the movie is a good adaptation in that it hits themes rather than trying to stay true to the precise way the novel works. The novel has great stuff on machines to dial up a mood. People use it to stimulate anger, happiness, etc. as the situation requires. Did that presage mood drugs and more? Sort of. Did it hit on how we choose to live and ideas of what is authentic life and emotion? Yes. Should we take the messages about the world as reflecting reality today? No.

Although law and literature can, and maybe should, use literature to help understand an idea, saying that the world is now just like Minority Report or some other work is a reach. Using a film or novel to say something is a concern or to illustrate ideas of Orwellian, Kafkan, or other futures and that we wish to ask whether that is real can help. But the key is to rally the facts that show that those fictions are now a reality or that facts are in place that open the door to dystopia. Speaking of dystopia, I wonder how often people use fiction to say that the world or a technology is leading us to a better place. In my experience legal scholars tend to dismiss upbeat outlooks as naive or “just so” stories. I am not sure that Dick is dystopian. But in general if folks have examples where literature or film are examples of a good outcome from technology, please share.

Nonetheless, I offer Philip K. Dick in all his messy glory as my choice for Most Important SciFi Author of the 20th Century.

0

Not Found, Forbidden, or Censored? New Error Code 451 May Help Figure It Out

When UK sites blocked access to the Pirate Bay following a court order the standard 403 code error for “Forbidden” appeared, but a new standard will let users know that a site is not accessible because of legal reasons. According to the Verge, Tim Bray proposed the idea more than three years ago. The number may ring a bell. It is a nod to Bradbury’s Farenhiet 451. There some “process bits” to go before the full approval, but developers can start to implement it now. As the Verge explains, the code is voluntary. Nonetheless

If implemented widely, Bray’s new code should help prevent the confusion around blocked sites, but it’s only optional and requires web developers to adopt it. “It is imaginable that certain legal authorities may wish to avoid transparency, and not only forbid access to certain resources, but also disclosure that the restriction exists,” explains Bray.

It might be interesting to track how often the code is used and the reactions to it.

Here is the text of how the code is supposed to work:

This status code indicates that the server is denying access to the
resource as a consequence of a legal demand.

The server in question might not be an origin server. This type of
legal demand typically most directly affects the operations of ISPs
and search engines.

Responses using this status code SHOULD include an explanation, in
the response body, of the details of the legal demand: the party
making it, the applicable legislation or regulation, and what classes
of person and resource it applies to. For example:

HTTP/1.1 451 Unavailable For Legal Reasons
Link: ; rel=”blocked-by”
Content-Type: text/html


Unavailable For Legal Reasons

Unavailable For Legal Reasons

This request may not be serviced in the Roman Province
of Judea due to the Lex Julia Majestatis, which disallows
access to resources hosted on servers deemed to be
operated by the People’s Front of Judea.


0

Politics of Process-Tricky Stuff

The walls between commercial and political products, processes, and speech continue to collapse. Douglas Kysar’s Preferences for Processes: The Process/Product Distinction and the Regulation of Consumer Choice, calls out that “[g]lobalization . . . has enhanced the flow of information, not merely goods, and information regarding processes increasingly is finding its way down-stream” such that “consumer preferences may be heavily influenced by information regarding the manner in which goods are produced.” (118 Harv. L. Rev. 525, 529, 641 (2004)). A recent decision by the EU highlights the tension.

According to the Economist, the EU has rules that will mean that goods made in West Bank will no longer be labeled as “Produce of Israel” but “Produce of the West Bank (Israeli settlement)”. As I have argued in Speech, Citizenry, and the Market “What we buy, what we use, how we make, and how we use have moved beyond pure, personal cost evaluations. Today the idea that purchasing choices are ‘purely private concerns’ is less clear and often inaccurate.” I think this point holds for both sides of this decision. The EU claims that the rule is “to ensure consumers are not misinformed;” not discriminate against Israel. Israel disagrees. According to the Economist at least one wine maker in the West Bank said “This will probably only make [his wines] more popular.” And “He is already planning a line of Christmas gift-boxes with additional settlement products, which he believes will be a hit in evangelical communities in America.” Is the rule increasing information or it is enabling discrimination? The answer is both views seem correct. Insofar as there is better information about where a product is made, people may choose to buy or not to buy based on politics. Thus the EU is providing more information (though may be not clearing up “misinformation”), and yes, some may not stock or buy goods made in the West Bank and in that sense discriminate.

In short, the EU rule creates the possibility for feedback from the market and that feedback can mean a range of things. As Kysar predicted, consumers “may well come to view such preferences as their most appropriate mechanism for influencing the policies and conditions of a globalized world.” If the rule influences the market, as I put the point about corporate speech, “Consumers are voting for policy through the market.” That said, if as the Economist indicated “Israel’s Economics Ministry reckons that it could cause no more than $50m-worth of damage to Israeli producers a year, out of some $300m exported from the settlements (and some $18.9 billion that Israel exports to Europe,” then it seems the gesture is trying to send a signal beyond just letting the market signal processes it cares about. As I said, the walls between commercial and political continue to collapse; maybe they were never that separate.

0

A Little History That May Help Understand Current Politics

The current politics around the race to be the Republican candidate for President, ISIS, online speech, campus speech, technology, labor, and more have stuck me has angrier and a bit more irrational than I am used to, so an old essay, The Paranoid Style in American Politics by Richard Hofstadter, caught my eye. I offer it as a quick historical perspective on some of our current issues and approaches to them. Hofstadter writes quite well, so it is another example of good style. But he shows that the “paranoid style,” as he calls it, rises across the range of political views and has done so for some time. Here is his opening:

American politics has often been an arena for angry minds. In recent years we have seen angry minds at work mainly among extreme right-wingers, who have now demonstrated in the Goldwater movement how much political leverage can be got out of the animosities and passions of a small minority. But behind this I believe there is a style of mind that is far from new and that is not necessarily right-wing. I call it the paranoid style simply because no other word adequately evokes the sense of heated exaggeration, suspiciousness, and conspiratorial fantasy that I have in mind. In using the expression “paranoid style” I am not speaking in a clinical sense, but borrowing a clinical term for other purposes. I have neither the competence nor the desire to classify any figures of the past or present as certifiable lunatics. In fact, the idea of the paranoid style as a force in politics would have little contemporary relevance or historical value if it were applied only to men with profoundly disturbed minds. It is the use of paranoid modes of expression by more or less normal people that makes the phenomenon significant. (emphasis added)

That he calls out that the style can show up for any party and is not about being crazy is excellent. He goes on to admit that the term is “perjorative,” because he wants to ensure we know that although it “has a greater affinity for bad causes than good. [] nothing really prevents a sound program or demand from being advocated in the paranoid style. Style has more to do with the way in which ideas are believed than with the truth or falsity of their content.” Wow. He knows someone may say well what about true or false, and he swipes that issue aside, so that he can get to his point, “I am interested here in getting at our political psychology through our political rhetoric. The paranoid style is an old and recurrent phenomenon in our public life which has been frequently linked with movements of suspicious discontent.”

In two paragraphs, Hofstadter explains the idea, the scope, and why one should read more. Damn fine work. Plus he goes on to show show McCarthyism, early populism, fears of Masons and Illuminati (yes Illuminati), and fear of Jesuits fit his idea. To be clear, Hofstadter thinks that something different–including the felling of “dispossession” as Daniel Bell put it–explains what happened with the right in the 1950s. And he offers that mass media allows for greater, easier demonization. Nonetheless, I think that his summation fits for a range of views today:

Norman Cohn believed he found a persistent psychic complex that corresponds broadly with what I have been considering—a style made up of certain preoccupations and fantasies: “the megalomaniac view of oneself as the Elect, wholly good, abominably persecuted, yet assured of ultimate triumph; the attribution of gigantic and demonic powers to the adversary; the refusal to accept the ineluctable limitations and imperfections of human existence, such as transience, dissention, conflict, fallibility whether intellectual or moral; the obsession with inerrable prophecies . . . systematized misinterpretations, always gross and often grotesque.”

As Hofstadter put it, this view allowed him to “conjecture” that “that a mentality disposed to see the world in this way may be a persistent psychic phenomenon, more or less constantly affecting a modest minority of the population.”

The real punch came as he connected the modest minority to more. He said, “But certain religious traditions, certain social structures and national inheritances, certain historical catastrophes or frustrations may be conducive to the release of such psychic energies, and to situations in which they can more readily be built into mass movements or political parties.” That is the idea that worries me. According to Hofstadter, part of the problem may be “a confrontation of opposed interests which are (or are felt to be) totally irreconcilable, and thus by nature not susceptible to the normal political processes of bargain and compromise.” Furthermore, when groups are shut out of “the political process” even if their demands are “unrealistic” or unrealizable,” “they find their original conception that the world of power is sinister and malicious fully confirmed. They see only the consequences of power—and this through distorting lenses—and have no chance to observe its actual machinery.” The idea is to at least be open to other views and seek compromise. Still I am not sure what the response to being shut-out and unable to observe the machinery should be. I can understand that some will argue the process itself is corrupt, and it may be corrupt. I don’t think that submission to the Paranoid Style is the way to go. Nor is simply saying that the system will work correct. To riff on Hofstadter, if the Paranoid Style is on the rise and going mainstream for any issue, we should note it, and be open to the claims and facts. It may be that we missed a sea change that has not only style but substance, often a dangerous substance, as is the case when in “an arena for angry minds.”

0

A Darn Good Read – Paul Schwartz on Data Processing

Almost twenty-five years ago, Paul Schwartz wrote Data Processing and Government Administration: The Failure of the American Legal Response to the Computer, 43 HASTINGS L.J. 1321 (1991) (pdf), and I must say it is worth a read today. Paul identified the problems with government’s and especially the administrative state’s use of computation to do their duties. As he opened:

Computers are now an integral part of government administration. They put a tremendous amount of personal data in the hands of government officials, who base a wide range of decisions on this information. Yet the attention paid to the government’s use of data processing has not been equal to the potential dangers that this application presents. Personal information, when disclosed to family and friends, helps form the basis of trust; in the hands of strangers, this information can have a corrosive effect on individual autonomy. The human race’s rapid development of computer technology has not been matched by a requisite growth in the ability to control these new machines.

That passage may seem familiar, but recall when it was written and note the next point Paul made:

This Article’s goal is to formulate a constructive response to computer processing of personal data. The destruction of computers is no more an answer to informatization than the destruction of earlier machines would have been an answer to industrialization. Accordingly, this Article seeks to understand the results of the government’s processing of
personal data and to develop appropriate legal principles to guide this application of computer technology.

That goal seems to be missing in some discussions, but I think it is a good one. To be clear, I don’t necessarily agree with some of Paul’s prescriptions. But the point of this post is not about that. I recommend the paper despite disagreeing with some of the ideas. I do so because it helped me with the history of the topic, explained issues, presented a structure and jurisprudence to drill into the topic, offered ways to address them, and pushed me to think more on my views. It is a well-written, worthwhile read both for substance and style.

In short, thank you Professor Schwartz.

0

Writing as a career and passion

As a young scholar the desire to be read, invited to conferences, and cited is strong; but how to obtain these glories is unclear. Should one write and have faith that good work will be found? Or is there more to do? The New Republic’s recent review by Sam Sacks of two short story collections offers two benefits; it suggests two collections and looks at the ongoing tension between professional versus artistic creation. Exploring this tension should help answer what to do as a scholar.

The first collection, The Unprofessionals, edited by Lorin Stein comes from the Paris Review, and according to Sacks “defines itself against the emergence of a hyper-professionalized breed of fiction writer.” Sacks points to the editor’s preface which criticizes the trend of young authors’ using social media to self-promote and as the editor put it “to think of themselves as professionals: to write long and network hard.” Stein’s work is “a kind of elite artist’s colony whose sole mandate is the refinement of craft.” In contrast, Sacks offers New American Stories. Sacks calls its editor Ben Marcus “an emissary for a wide range of writers on the margins of the mainstream.” Thus according to Sacks, “Stein is an editor charged with elevating the few from the many, Marcus has emerged as an emissary for a wide range of writers on the margins of the mainstream.” As Sacks says, “If The Unprofessionals is like a beautifully unified concept album, New American Stories is, to use Marcus’s analogy, a mixtape.” Sacks hits notes that matter to academics as professionals, when he talks of politics.

As Sacks offers:

Two anthologies, two visions of American fiction: one exclusive, one eclectic; one that seals its ears to the clamor of the industry, one that takes inspiration from the chorus of voices being published. The second vision has the stronger sense of political purpose. Many new writers want to be read and discussed by a large audience, to be noticed by prize committees, to take an active part in the cultural conversation—all activities of the so-called professional—not because, contrary to Stein’s opinion, they’re out for money, but because this kind of recognition is central to the politics of their writing.

Much the same could be said of scholarship. There can be the current in-crowd orthodoxy that has a certain style and approach. It can be exclusive and seem to anoint stars. There can also be the out-crowd with its orthodoxy and anointed but that seek to challenge the status quo just as Sacks says, “The stories in Marcus’s anthology reflect the interest many new writers have in rearranging social hierarchies and redefining terms of normalcy.” Sacks further helps understand the politics when he discusses an essay by Parul Sehgal. Seghal looked at a novel that used a new form and said the project and style was “less a performance of alienation than a passionate effort at reconciliation.” Thus according to Sacks, the goal of writers such as those in the Unprofessionals, “writers traditionally left outside of the conversation” is “to be recognized as professionals.” If professional means one’s ideas have been taken mainstream (and in Portlandia parlance “you are so over”), I think Sacks sums up where scholars hope to be too. Challenging current ideas and scopes of concerns can be lonely. As one finds a community to work with and the work gains traction, the work may go mainstream. At that point, enjoy the ride. The newbies will come to show you what you missed. But there is more to it than being professional. As Sacks goes through the authors in the collection, you get a sense of what might matter depending on what you like to read or how you want to be challenged. At the very least you get a list of names to ponder and pursue. But his key point applies to scholars too.

Sacks saves his highest praise for Denis Johnson, “Johnson could be in Stein’s anthology as well as Marcus’s (he’s appeared in The Paris Review repeatedly over the years).” And here is the key:

But that just means that he’s achieved the aim of all writers: He’s transcended categorization. It no longer makes any difference how you label him—professional or unprofessional—since he’s written fiction good enough to outlive him.

Somethings never change.

6

The Government Can’t Propagandize?

I just read that the EPA was recently called out for using a “social media campaign encouraging voters to weigh in on a controversial proposal [that] amounted to ‘covert propaganda’ and ‘grassroots lobbying’ that federal agencies cannot legally conduct, according to a total 26-page report released on Monday by Congress’s Government Accountability Office.” Huh? I am out of my depth of knowledge here and am calling on our own Ron Collins to help, but I am wondering what exactly this rule is and what it means. It seems to me that using social media to reach people is a good thing for an agency. It seems to me that any agency will have its bias and should probably try to limit that voice. Yet if I get the gist, the EPA or any agency is not allowed to urge folks to contact federal and state legislators. I say that because according to the Christian Science Monitor the social media activity had links to “links to educational information, as well as deadlines and how-to guides on submitting comments to the public record” but the EPA spokeswoman made it a point to say “At no point did EPA encourage the public to contact Congress or any state legislature.”

So if an agency shares details about rules, policy, and science that is OK but suggesting that people voice their views pro or con is a problem? To be clear an EPA official blogged and shared that he was a beer drinker and surfer and supported the rule because of pollution concerns and linked to Surfrider which advocates about water policy. I can see how that is an issue. My question is more about the possible rule against encouraging folks to act. I may be missing something here. I hope I am.

0

China, the Internet, and Sovereignty

China’s World Internet Conference is, according to its organizers, about:

“An Interconnected World Shared and Governed by All—Building a Cyberspace Community of Shared Destiny”. This year’s Conference will further facilitate strategic-level discussions on global Internet governance, cyber security, the Internet industry as the engine of economic growth and social development, technological innovation and philosophy of the Internet. It is expected that 1200 leading figures from governments, international organizations, enterprises, science & technology communities, and civil societies all around the world will participate the Conference.

As the Economist points out, “The grand title is misleading: the gathering will not celebrate the joys of a borderless internet but promote “internet sovereignty”, a web made up of sovereign fiefs, gagged by official censors. Political leaders attending are from such bastions of freedom as Russia, Pakistan, Kazakhstan, Kyrgyzstan and Tajikistan.”

One of the great things about being at GA Tech is the community of scholars from a wide range of backgrounds. This year colleagues in Public Policy hired Milton Mueller, a leader in telecommunication and Internet policy. I have known his work for some time, but it has been great getting to hang out and talk with Milton. Not surprising, but Milton has a take on the idea of sovereignty and the Internet. I can’t share it, as it is in the works. But as a teaser, keep your eye out for it.

As a general matter, it seems to me that sovereignty will be a keyword in coming Internet governance debates across all sectors. Whether the term works from a political science perspective or others should be interesting. Thinking of jurisdiction, privacy, surveillance, telecommunication, cyberwar, and intellectual property, I can see sovereignty being asserted, perverted, and converted to serve a range of interests. Revisiting the core international relations theories to be clear about what sovereignty is and should be seems a good project for a law scholar or student as these areas evolve.