Author: Frank Pasquale

Corporate Experimentation

Those interested in the Facebook emotional manipulation study should take a look at Michelle N. Meyer’s op-ed (with Christopher Chabris) today:

We aren’t saying that every innovation requires A/B testing. Nor are we advocating nonconsensual experiments involving significant risk. But as long as we permit those in power to make unilateral choices that affect us, we shouldn’t thwart low-risk efforts, like those of Facebook and OkCupid, to rigorously determine the effects of those choices. Instead, we should…applaud them.

Meyer offers more perspectives on the issue in her interview with Nicolas Terry and me on The Week in Health Law podcast.

For an alternative view, check out my take on “Facebook’s Model Users:”

[T]he corporate “science” of manipulation is a far cry from academic science’s ethics of openness and reproducibility. That’s already led to some embarrassments in the crossover from corporate to academic modeling (such as Google’s flu trends failures). Researchers within Facebook worried about multiple experiments being performed at once on individual users, which might compromise the results of any one study. Standardized review could have prevented that. But, true to the Silicon Valley ethic of “move fast and break things,” speed was paramount: “There’s no review process. Anyone…could run a test…trying to alter peoples’ behavior,” said one former Facebook data scientist.

I just hope that, as A/B testing becomes more ubiquitous, we are well aware of the power imbalances it both reflects and reinforces. Given already well-documented resistance to an “experiment” on Montana politics, it’s clear that the power of big data firms to manipulate even the very political order that ostensibly regulates them, may well be on the horizon.

Is the Happiness Industry Creating Algorithmic Selves?

In a recent podcast called “Thinking Allowed,” host Laurie Taylor covered two fascinating books: The Wellness Syndrome, and The Happiness Industry. One author discussed a hedge fund that’s now managing what it calls “biorisk” by correlating traders’ eating, drinking, and sleeping habits, and their earnings for the firm. Will Davies, author of The Happiness Industry, discussed less intrusive, but more pervasive, efforts to assure that workers are fitter, happier, and therefore more productive. As he argues in the book,

[M]ood-tracking technologies, sentiment analysis algorithms and stress-busting meditation techniques are put to work in the service of certain political and economic interests. They are not simply gifted to us for our own Aristotelian flourishing. Positive psychology, which repeats the mantra that happiness is a personal ‘choice’, is as a result largely unable to provide the exit from consumerism and egocentricity that its gurus sense many people are seeking.

But this is only one element in the critique to be developed here. One of the ways in which happiness science operates ideologically is to present itself as radically new, ushering in a fresh start, through which the pains, politics and contradictions of the past can be overcome. In the early twenty-first century, the vehicle for this promise is the brain. ‘In the past, we had no clue about what made people happy – but now we know’, is how the offer is made. A hard science of subjective affect is available to us, which we would be crazy not to put to work via management, medicine, self-help, marketing and behaviour change policies.

The happiness industry thrives in a culture premised on an algorithmic model of the self. People (or “econs“) are seen a bundle of inputs (data collection), algorithmic processes (data analysis), and outputs (data use). Since the demands of affect can only be extirpated in robots, the challenge for the happiness industry is to optimize some quantum of satisfaction for its human subjects, compatible with their maximum productivity. Objectively, the algorithmic self is no more (nor less) than the goods and services it uses and creates; subjectively, it strives to convert inputs of resources into outputs of joy, contentment–name your positive affect. As “human resources,” it is simply raw material to be deployed to its most profitable use.

Audit culture, quantification (e.g., the quantified self), commensuration, and cost-benefit analysis all reflect and reinforce algorithmic selfhood. Both the Templeton Foundation and the Social Brain Centre in Britain are developing some intriguingly countercultural alternatives to big data-driven behaviorism. As he highlights the need for such alternatives, Davies deserves great credit for exposing the political economy behind corporate appropriations of positive psychology.

Worker Replaceability: A Question of Values

One reason I decided to write on law practice technology was because of a general unease about the shape of debates on automation. Technologists and journalists tend to look at jobs from the outside, presume that they are routine, and predict they’ll be further routinized by machines. But some reality checks are important here.

As David Rotman observes, “there is not much evidence on how even today’s automation is affecting employment.” Many economists believe that technology will create more jobs than it destroys. MIT’s David Autor, writing for the Federal Reserve Bank of Kansas City’s economic policy symposium on “Reevaluating Labor Market Dynamics,” states that “journalists and expert commentators overstate the extent of machine substitution for human labor and ignore the strong complementarities”—in other words, the ways that automation can increase, rather than decrease, the value of human labor. Consider, for instance, the use of voice recognition software: it may put transcriptionists out of work, but increases the value of the labor of a person who can now, say, transcribe what they’ve dictated 24 hours a day, rather than just when the transcriptionist is near. The selfie-stick may have a similar effect on cameramen and journalists. Legal tech may put some lawyers out of a job, while creating jobs for others.

It’s also easy to overestimate the scope of automation. Autor gives a sobering example of windshield repair:

Most automated systems lack flexibility—they are brittle. Modern automobile plants, for example, employ industrial robots to install windshields on new vehicles as they move through the assembly line. But aftermarket windshield replacement companies employ technicians, not robots, to install replacement windshields. Why not robots? Because removing a broken windshield, preparing the windshield frame to accept a replacement, and fitting a replacement into that frame demand far more real-time adaptability than any contemporary robot can
approach.

The distinction between assembly line production and the in-situ repair highlights the role of environmental control in enabling automation. While machines cannot generally operate autonomously in unpredictable environments, engineers can in some cases radically simplify the environment in which machines work to enable autonomous operation.

Admittedly, the “society of control” scenario discussed here, or even milder versions of the “smart city,” may lead to far more controllable environments. But they also raise critical questions about privacy, fair data practices, and liberty.

There are also conflicts over values at stake in worker replacement. Osborn & Frey’s study The Future Of Employment: How Susceptible Are Jobs To Computerisation? tries to rank order 702 positions on the degree of likelihood of their automation. They characterize recreational therapists as least automatable, and title examiners and searchers as the second most automatable. But many video games offer forms of therapy, and therapeutic jobs (like masseur) and even higher-touch jobs could, in principle, be computerized. Furthermore, at least in the United States in the wake of MERS, there has been a loss of “confidence in real property recording systems.” Title insurance may hinge on legal questions that are still up in the air in certain states. Yes, further automation and recognition of things like MERS might “cut the Gordian knot,” but that solution would also inevitably trench on other values of legal regularity and due process.

In summary: automation anxieties could be as overblown now as they were in the 1960s. And the automation of each occupation, and tasks within occupations, will inevitably create conflicts over values and social priorities. Far from a purely technical question, robotization always implicates values. The future of automation is ours to master. Respecting workers, rather than assuming their replaceability of, would be a great start.

Dulce et Decorum Est: Critics of Student Loan Forgiveness Rally the Troops

For years, critics of loan forgiveness programs for students have argued that they are a form of “welfare,” when in fact they’re a necessary corrective to the excessively harsh bankruptcy regime imposed on student debt. But the critics are getting a hearing, and guess where the money is probably going:

[A]t some point, there is going to be a deal on appropriations and raising the debt ceiling. There is a lot of pressure to raise defense spending. Some of these student loan items [like the Public Service Loan Forgiveness Program] could wind up on the table in such a deal.

We’ve seen this pattern again and again: 1) create a scare about excessive “entitlement” spending, 2) spur either tax cuts for the rich or reallocation of “entitlement” money to the force or finance sectors, and 3) repeat once excess military spending once again drives budgetary imbalances. The PLSF is a low-cost program designed to promote provision of important services to the underserved. It’s amazing to think, of all the expenditure lines that could be attacked, this was the one chosen. But it is of a piece with larger social trends to shift money away from human services, and toward force and finance.
Read More

The New York Times’ Curious War on Traditional Higher Education

It’s a strange position for America’s “paper of record” to take. Despite its largely traditionally-college-educated readership, the New York Times is constantly publishing articles attacking the value of university degrees. Tom Friedman dismisses them as expensive merit “badges” oft-unrelated to the exact qualifications needed for jobs. The ubiquitous Tyler Cowen blasts ed sector costs and inefficiencies, despite international acclaim for US universities. The author of The End of College has had a high-profile platform at the Times‘s Upshot blog.

All three men tend to characterize traditional college degrees as mere signals, barely (if at all) related to the actual skills, habits, and qualities of mind and character that lead to successful, fulfilling lives. I’ve never seen them grapple with the extensive empirical literature on why education increases earnings. Nor do they tend to respond much to the hard data that their colleague David Leonhardt provides on the costs and benefits of college.

Sadly, there’s just too much money in education disruption narratives for the Times‘s most prominent writers to give up on them. Critics have documented how “influence moved from the $795/$495 per person corporate-sponsored [New York Times Schools for Tomorrow] conference [with the theme Virtual U: The Coming Age of Online Education] to the pages of the newspaper of record.” As Facebook and other tech firms angle to squeeze ever more control over (and compensation from) their “content partners,” those partners in turn seek advertising from similar tech firms in other sectors. That’s one reason you’ll see, for example, long stories (aka “earned content”) about legal technology “disruptors” in legal trade publications, near paid ads for the same firms elsewhere on the magazine or website.

I’ll make one grudging concession to Cowen: he’s long argued that marketing is set to become a much larger part of our economy, and you can see its dominance congealing in the ed space now. “Disruptive innovators” push for more for-profit schools and nano-degrees–even though the former have seen so many scandals, and the latter have barely been tested. But what these newfangled entrepreneurs lack in quality, they make up for in marketing budgets. The figures exposed a few years ago were shocking:

At the end of July 2012 the Senate Committee on Health, Education, Labor and Pensions presented an 800-page report, the culmination of a two-year investigation into ‘for-profit’ higher education institutions.​ The senators found that at such institutions a mere 17.4% of annual revenue was spent on teaching, while nearly 20% was distributed as profit (the proportion spent on marketing and recruitment was even higher).

All those marketing dollars, flowing to Google or Facebook as conduit, or publications like the New York Times as content, get attention. It’s no wonder why leading technologists and journalists think it’s so important to promote the disruptors. But they may find their own brands tarnished as the harsh realities of techno-utopian ed reform gradually become more apparent.

Four Futures of Legal Automation

BarbicanThere are many gloom-and-doom narratives about the legal profession. One of the most persistent is “automation apocalypse.” In this scenario, computers will study past filings, determine what patterns of words work best, and then—poof!—software will eat the lawyer’s world.

Conditioned to be preoccupied by worst-case scenarios, many attorneys have panicked about robo-practitioners on the horizon. Meanwhile, experts differ on the real likelihood of pervasive legal automation. Some put the risk to lawyers at under 4%; others claim legal practice is fundamentally routinizable. I’ve recently co-authored an essay that helps explain why such radical uncertainty prevails.

While futurists affect the certainties of physicists, visions of society always reflect contestable political aspirations. Those predicting doom for future lawyers usually harbor ideological commitments that are not that friendly to lawyers of the present. Displacing the threat to lawyers to machines (rather than, say, the decisionmakers who can give machines’ doings the legal effect of what was once done by qualified persons) is a way of not merely rationalizing, but also speeding up, the hoped-for demise of an adversary. Just like the debate over killer robots can draw attention away from the persons who design and deploy them, so too can current controversy over robo-lawyering distract from the more important political and social trends that make automated dispute resolution so tempting to managers and bureaucrats.

It is easy to justify a decline in attorneys’ income or status by saying that software could easily do their work. It’s harder to explain why the many non-automatable aspects of current legal practice should be eliminated or uncompensated. That’s one reason why stale buzzwords like “disruption” crowd out serious reflection on the drivers of automation. A venture capitalist pushing robotic caregivers doesn’t want to kill investors’ buzz by reflecting on the economic forces promoting algorithmic selfhood. Similarly, #legaltech gurus know that a humane vision of legal automation, premised on software that increases quality and opportunities for professional judgment, isn’t an easy sell to investors keen on speed, scale, and speculation. Better instead to present lawyers as glorified elevator operators, replaceable with a sufficiently sophisticated user interface.

Our essay does not predict lawyers’ rise or fall. That may disappoint some readers. But our main point is to make the public conversation about the future of law a more open and honest one. Technology has shaped, and will continue to influence, legal practice. Yet its effect can be checked or channeled by law itself. Since different types of legal work are more or less susceptible to automation, and society can be more or less regulatory, we explore four potential future climates for the development of legal automation. We call them, in shorthand, Vestigial Legal Profession, Society of Control, Status Quo, and Second Great Compression. An abstract appears below.

Read More

Leading the World with Free Trade

As debate heats up on the Trans-Pacific Partnership trade deal, journalists should keep a few key points in mind. First, the deal is in essence deregulatory, shifting enormous power to multinational corporations to challenge basic legal protections of consumers and citizens. Second, the US has a history of using its power in the global trading system to promote fundamentally unsafe products and services to other nations. Consider this snippet from a story on lead paint:

By the 1920s, it was known that one common cause of childhood lead poisoning was the consumption of lead paint chips. . . . In 1922, the League of Nations proposed a worldwide lead paint ban, but at the time, the US was the largest lead producer in the world, and consumed 170,000 tons of white lead paint each year. The Lead Industries Association had grown into a powerful political force, and the pro-business, America-first Harding administration vetoed the ban. Products containing lead continued to be marketed to American families well into the 1970s, and by midcentury lead was everywhere: in plumbing and lighting fixtures, painted toys and cribs, the foil on candy wrappers, and even cake decorations. . . .

Lead paint was the most insidious danger of all because it can cause brain damage even if it isn’t peeling. Lead dust drifts off walls, year after year, even if you paint over it. It’s also almost impossible to get rid of. Removal of lead paint with electric sanders and torches creates clouds of dust that may rain down on the floor for months afterward, and many children have been poisoned during the process of lead paint removal itself. Even cleaning lead-painted walls with a rag can create enough dust to poison a child.

Of course, at this stage in the development of globalization, toxic financial products are a greater concern than toxic chemicals.  We’ve also advanced toward more subtle ways of assuring their proliferation. But the core mission of “free trade” law in this, as in so many areas, is relatively clear: to open yet another venue where corporations, far from being held accountable for their actions, can instead undermine crumbling extant legal protections for consumers.

“They Cannot Breathe:” Poisoned Workers in Nail Salons

The grim story of deregulation in the US economy has another victim: nail salon workers. A New York Times expose has won tremendous attention to their plight in an industry that has long resisted regulation:

Some states and municipalities recommend workers wear gloves and other protection, but salon owners usually discourage them from donning such unsightly gear. And even though officials overseeing workplace safety concede that federal standards on levels of chemicals that these workers can be exposed to need revision, nothing has been done. So manicurists continue to paint fingertips, swipe off polish and file down false nails, while absorbing chemicals that are potentially hazardous to their health. . . .

In interviews with over 125 nail salon workers, airway ailments . . . were ubiquitous. Many have learned to simply laugh them off — the nose that constantly bleeds, the throat that has ached every day since the manicurist started working.

For those interested in the legal background, I highly recommend a piece by my former student, Kelsey-Anne Fung. In 2014, she concluded:

Southeast and East Asian immigrant nail salon workers face disproportionate exposure levels to dangerous and carcinogenic nail products, and as a result, suffer severe health outcomes at unusually high rates. Without FDA authority of pre-market approval, testing, or recall, the cosmetic industry is wholly self–regulated, resulting in scarce protections to consumers and professions who use nail products on a daily basis. Salon owners often pay below minimum wage, do not provide health insurance or any benefits, and fail to supply adequate safety equipment. Consequently, workers must rely on community safety net clinics and public hospitals for medical care to treat ailments from working in the nail salon, paying steep out–of–pocket rates. On its own, the Patient Protection and Affordable Care Act does not remedy any of the health policy issues facing immigrant nail salon workers. Thus, [state-level interventions] may be the only viable solution to securing preventative and affordable health care services for this overburdened and vulnerable labor force.

Both Fung’s article, and the NYT piece, are must-reads for anyone concerned about the fate of workers in an increasingly deregulated environment.

 

 

 

Europe Steps Up to the Challenge of Digital Competition Law

Two years ago U.S. authorities abandoned a critical case in digital antitrust. The EC now appears ready to fill the void:

The European Commission is said to be planning to charge Google with using its dominant position in online search to favor the company’s own services over others, in what would be one of the biggest antitrust cases here since regulators went after Microsoft. . . . If Europe is successful in making its case, the American tech giant could face a huge fine and be forced to alter its business practices to give smaller competitors like Yelp greater prominence in its search queries.

I applaud this move. As I’ve argued in The Black Box Society, antitrust law flirts with irrelevance if it fails to grapple with the dominance of massive digital firms. Europe has no legal or moral obligation to allow global multinationals to control critical information sources. Someone needs to be able to “look under the hood” and understand what is going on when competitors of Google’s many acquired firms plunge in general Google search results.

Google argues that its vast database of information and queries reveals user intentions and thus makes its search services demonstrably better than those of its rivals. But in doing so, it neutralizes the magic charm it has used for years to fend off regulators. “Competition is one click away,” chant the Silicon Valley antitrust lawyers when someone calls out a behemoth firm for unfair or misleading business practices. It’s not so. Alternatives are demonstrably worse, and likely to remain so as long as the dominant firms’ self-reinforcing data advantage grows. If EU authorities address that dynamic, they’ll be doing the entire world a service.

PS: For those interested in further reading about competition online:
Read More

New Podcast: The Week in Health Law (TWIHL)

Nicolas Terry and I are starting a health law podcast, The Week in Health Law, and the first two episodes are posted here. We were honored to have Nicole Huberfeld on as our first guest. Check it out on iTunes, Stitcher, or your favorite podcast app.

Next week we’ll be talking with Abigail Moncrieff the day after King v. Burwell oral arguments. Later guests this month include Lindsay F. Wiley (on wellness programs) and Erin C. Fuse Brown (on health costs).