Category: Cyberlaw


How Should Courts Handle Cultural Dissensus on Summary Judgment?

That’s the deep question unanswered by last year’s Supreme Court decision, Scott v. Harris. As Dan Kahan announced here on Balkin, he, current guest-blogger Don Braman, and I have written a paper testing the majority’s view that no reasonable jury could or would find for the plaintiff after watching this videotape. The experiment we conducted was simple and intuitive: we showed the video to a 1,350 member subject pool and asked them about it. Our first circulating draft, Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris, can be downloaded here.

Overall, we found substantial support for the Court’s position: most members of the subject pool agreed with the majority about the risks posed by the police chase, the relative fault of the parties, and the ultimate questions of justification. But does majority support mean SJ is correct? Our thought was that that question can’t be meaningfully answered without some understanding of the characteristics of the minority of people who would disagree with the court. We wanted to identify who those people were and figure out whether there was any explanation that might explain their differing view of the tape besides that they are unreasonable. In particular, we wanted to test the hypothesis, grounded in cultural cognition theory, that the dissenters would not be random statistical outliers but persons disposed by shared cultural values and other characteristics to process visual information in the tape different from how the majority did.

ronOur results showed exactly that. Dissenters to the Court’s view of the facts and the appropriateness of summary judgment were linked by shared cultural styles that features a commitment to egalitarianism and communitarianism. By the same token, subjects who were strongly inclined to see things the Court’s way were linked by commitments to hierarchy and individualism.

Drawing on Joseph Gusfield’s work on “status collectivities,” we imagined four potential members of the venire: Pat, Ron, Linda, and Bernie. You can see their pictures to the left. Ron is a rich Goldwater republican from Arizona. Bernie is a socialist professor from Vermont with average income. Linda a social worker from Philadelphia, whose income is also at the mean. And Pat is the average American in every respect.

Using statistical simulations, we found that these individuals would have very different reactions to the video, based on their distinct forms of culturally motivated cognition of the risks involved. Take, for example, subjects’ reaction to the statement “[t]he danger that Harris’s driving posed to the police and the public justified Officer Scott’s decision to end the chase in a way that put Harris’s own life in danger.” The graphic below illustrates how Ron, Linda, Bernie and Pat will respond.

New Picture.jpg

At least three-fifths (64%, +/- 4%) of the persons who share Linda’s characteristics “disagree”—about one-half either strongly or moderately—with the statement and thus the result in Scott. Those who hold Bernie’s characteristics see things in nearly exactly the same way as those holding Linda’s. Pat does agree with the Scott majority, although not without a bit of equivocation. There is a 60% (+/- 3%) chance that a person drawn randomly from the population would either moderately or strongly agree that the police were justified in using deadly force. There is, however, a 16% (+/- 3%) chance that he/she would be only “slightly” inclined to agree, and over a 20% chance that he/she would conclude upon watching the tape that use of deadly force was unreasonable. Finally, over 80% of the individuals who share Ron’s characteristics would find that the police acted reasonably.

What does dissensus of this character mean for how courts should resolve summary judgment motions in cases like, and unlike Scott? When minorities of the venire would process visual information in particular way, but that minority sees things the way they do because they are linked by values?

I’ll explore these questions in subsequent posts (as will, I think, Don.)

Previous Posts:

Hoffman, The Death of Fact-finding and the Birth of Truth

Crocker, Do Texts Speak for Themselves?

Kerr, What Are the Facts in Scott v. Harris?

Access to Drugs

After the fireworks of the Abigail Alliance controversy, access to drugs has been a simmering political and legal issue. I noticed two interesting posts on it today.

1) Eric Goldman comments on a crackdown on a cyberpharmacy:

Today’s case involves the criminal prosecution of Dr. Thomas Hanny, a Connecticut-licensed doctor who retired after 30 years as a surgeon. He then hopped on the dot-com bandwagon, writing Internet-mediated prescriptions first for Pharmacon and then, after Pharmacon was shut down by law enforcement, for Jive. Hanny initially had doubts about the propriety of this line of work and even went so far as to hire his own attorney (who also expressed doubts), but Hanny either felt the issue was colorable enough or decided to look the other way, going so far as to ignore a cease-and-desist letter from Missouri prosecutors. Collectively, these proved to be poor decisions that will cost Hanny 33 months of his liberty.

Anyone interested in the topic might want to take a look at Nic Terry’s excellent article Prescriptions sans frontières (or how I stopped worrying about Viagra on the Web but grew concerned about the future of healthcare delivery).

2) Reason magazine has interesting coverage of the controversy over OTC status for certain statin drugs. Here’s their bottom line:

Last January a Food and Drug Administration (FDA) advisory panel considered a proposal to put Mevacor within easier reach. As they had during previous hearings in 2000, members of the committee fretted that patients would muck up dosages, lose track of cholesterol levels, and make poor decisions about diet and exercise if popping a pill appeared to produce the same results as a healthy lifestyle. One of only three doctors who voted to put the drug over the counter–David Schade, a professor at the University of New Mexico Department of Internal Medicine–based his vote on lack of access for the uninsured.

Despite Schade’s opposition, the panel voted 20-3 to keep the drug’s prescription-only status. By keeping statins locked within the burdensome and, for some, inaccessible health care system, the decision dampened hopes that statins could find wider use among the millions of Americans who ought to be taking them. For the time being, access to these lifesaving drugs depends on the tiny percentage of the population legally empowered to dole them out.

Though I’ve been skeptical of a general “right to medical self-defense,” the Mevacor story really makes me think. Here’s one counterargument:

[A]nalysis of the Merck data shows that 21.5 percent of people deciding on their own to purchase Mevacor over the counter did not need the drug. “This large proportion of purchasers would therefore be exposed to the risks of Mevacor – such as liver damage, muscle damage and other adverse effects – without evidence of any benefit,” Wolfe testified.

I do not know how I would vote if I were on the joint meeting of the Nonprescription Drugs Advisory Committee and the Endocrinologic and Metabolic Drugs Advisory Committee considering this issue. UPDATE: It looks like the most recent vote was negative.

Should There Be a Red Flag Link?

redflags.jpgLinks are the lifeblood of the web. You can almost think of a link as a light shining on a page, illuminating territory that might otherwise be hidden in a cloud of information overload. As Ray Cha has explained, “Google ranks pages by the number of links other sites point to a page.” So whenever someone writing online links to a page, they increase its prominence relative to other pages.

But what if you want to comment on something you disagree with? Or find utterly inane? If you link to it, you just increase its salience. If the site tracks back to you, you might be able to alert readers to your critique. But if it doesn’t, you just end up promoting the site even as you try to fight or mock it. Cha notes that there are some proposals to change this situation:

There have been suggestions to create a newer kind of syntax and link taxonomy which would add to the current binary options of link or no link. The simplest system would be to have three choices, positive link, negative link and no link. This system would actually be very easy for users. All you need to do is add a tag to the link.

This led me to think about the red and yellow flags on Westlaw that come up when a case is no longer good authority, or has been contradicted. I often think about the tension between accuracy and usefulness in signals like these. Part of me wants more gradations of meaning–I have definitely seen some “yellow flagged” cases that were far more questionable than other “yellow flagged” ones. But if we went to some “rainbow scheme” of vitality of authority, the system would likely get unwieldly. Even discussion forums that permit negative or positive rep points (or karma) tend to keep things very simple.

However “tiered linking” might emerge, it’s important to note how vital search engines will be to the process. Even if a platform like Blogger or MoveableType puts in multiple flavors of links, they’ll do little to alter web discourse if search engines don’t recognize them. Given the “chicken and egg” problem here, it’s likely that tiered linking is going to remain the province of limited and proprietary databases for the time being.

Photo Credit: Jen Waller.

Disparate Impact in the Blogosphere

Danielle Citron gave a compelling presentation at the recent Yale Symposium on Reputation in Cyberspace exploring how group dynamics can deter women from participating online. The Yale Pocket Part has done a symposium on online harassment. Citron moved the discussion forward by analyzing social psychological dynamics in online life and describing how much more likely women are to be threatened by the worst type of comments:

Threats, lies, and the disclosure of private facts discourage women from blogging in their own names. Women lose opportunities to establish online identities that would enhance their careers and attract clients.

Destructive online groups prevent the Web from becoming an inclusive environment. Disappointingly, this phenomenon throws us back to the nineteenth century, when women wrote under gender-neutral pseudonyms to avoid discrimination.

Web 2.0 technologies provide all of the accelerants of mob behavior but very few of its inhibitors. . . . Individuals who feel anonymous do and say things online that they would never seriously entertain doing and saying offline because they sense that their conduct will have no consequences. A site operator’s decision to keep up damaging posts encourages destructive group behavior. Online mobs also have little reason to fear that their victims will retaliate against them.

The AutoAdmit lawsuit is a first step toward addressing the last concern. Making internet intermediaries more responsible may be another.

Given that the Yale conference had been criticized for failing to adequately include women’s voices, Citron’s presentation was especially important. While cyberspace may be liberating for many, the same prejudices that permeate real life can infect the online world. And as more of our life gets conducted online, combating these prejudices is going to need to become not merely a legal, but a cultural project. That issue has a long history, and has sparked many valuable discussions. Citron has already done very important work on making computer systems more accountable, and I look forward to reading her contributions in this area.

Zero Sum Reputation Games

Silicon Valley entrepreneur Auren Hoffman gave an engaging presentation at the Yale conference on reputation in cyberspace this morning. (Rebecca Tushnet has a summary of his and many other presentations here.) Here are some points from his position paper:

1. You should know more about yourself than anyone else knows about you.

Consumers should have the right to find out what data is being collected about them. As a consumer, you should be able to go to DoubleClick, AdBrite,, Google, Yahoo, Aggregate Knowledge, etc. and a list of all the websites that track you. You should be able to go to Choicepoint, Experian, Acxiom, Rapleaf, etc. and see all the data they collect on you. . . . And you should be able to access this data for free at anytime.

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Yale Conference on Economies of Reputation in Cyberspace

Today I’ll be trying to comment on a conference I’m attending on “reputation economies in cyberspace.” Here’s an overview from the conference website:

Reputation, which plays a key role in almost any economic or social system, is a fundamental, but not well understood, aspect of online business transactions, peer production of information and knowledge, and exchanges within virtual social communities. Traditional modes of authentication, accreditation, reputation, and prior acquaintance with participants rely on the social norms of close-knit communities and the accountability of meeting face to face. Since these mechanisms usually do not apply to online environments, we have witnessed the development of alternative models for reputation management including third-party certificate authorities, peer-produced evaluations, ratings, stars, points, karma and others.

Dan’s book on The Future of Reputation does a great job talking about the most compelling “human interest” stories in the privacy realm. I look forward to hearing from many panelists today on more mundane, but quite important, efforts to translate old reputation measures (like FICO scores) into new cyber-realms (like deciding whom to loan money to on or Kiva).

Conditions for the Digital Library of Alexandria

librarywall.jpgI have been in the middle of a major rethink of search engines’ efforts to digitize books. As it started I enthusiastically celebrated their potential to tame information overload. But major research librarians are now questioning search engines’ practices here:

Several major research libraries have rebuffed offers from Google and Microsoft to scan their books into computer databases, saying they are put off by restrictions these companies want to place on the new digital collections. The research libraries, including a large consortium in the Boston area, are instead signing on with the Open Content Alliance [OCA], a nonprofit effort aimed at making their materials broadly available.

As the article notes, “many in the academic and nonprofit world are intent on pursuing a vision of the Web as a global repository of knowledge that is free of business interests or restrictions.”

As noble as I think this project is, I doubt it can ultimately compete with the monetary brawn of a Google. And why should delicate old books get scanned 3 or 4 times by duplicative efforts of Google, Microsoft, the OCA, and who knows what other private competitor? I also worry that a fragmented archiving system might create a library of Babel. So what is to be done?

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Scammer Yammer-Jammers to Slammer?

tubular.jpgCell phone yakkers, beware: a new device threatens to level the logorrhea:

[An architect] sat down next to a 20-something woman who he said was “blabbing away” into her phone. “She was using the word ‘like’ all the time. She sounded like a Valley Girl,” said the architect, Andrew, who declined to give his last name because what he did next was illegal.

Andrew reached into his shirt pocket and pushed a button on a black device the size of a cigarette pack. It sent out a powerful radio signal that cut off the chatterer’s cellphone transmission — and any others in a 30-foot radius.

This reminded me a bit of the airplane “seat blocker,” which prevents the seat in front of you from reclining. As far as I recall, the FAA did little to prevent their sale, but the FCC is taking no chances with the yammer-jammer:

The Federal Communication Commission says people who use cellphone jammers could be fined up to $11,000 for a first offense. Its enforcement bureau has prosecuted a handful of American companies for distributing the gadgets — and it also pursues their users.

Investigators from the F.C.C. and Verizon Wireless visited an upscale restaurant in Maryland over the last year, the restaurant owner said. The owner, who declined to be named, said he bought a powerful jammer for $1,000 because he was tired of his employees focusing on their phones rather than customers.

If the restaurant owner were to give notice of the jamming to customers, I would find this a difficult property rights issue. Loud cell phone conversations remind me of the proverbial “sparks from a train” that had to either be prevented by railroads or avoided by owners of flammable material. Who should get the initial entitlement: the yellular or the silence-seeking?

Photo Credit: Jovike.


Not Everyone Wants to Play Google’s Library Game

oldbooks2.JPGIt seems like Google is unstoppable. Frank’s recent post about Google and his talk on the subject reminds that Google is everywhere. Dan’s new book is necessary in part because of Google and other search engines. Google has even popped up offline. Rumors of taking on phone technology abound. And as many know Google has set its sights on books too. As Frank noted Siva Vaidhyanathan among others has questioned Google’s control of information. Vaidhyanathan’s paper, The Googlization of Everything and. the Future of Copyright, which appeared in the U.C. Davis Law Review, offers that in the book realm Google’s actions may trigger a large step backwards because of the nature of fair use.

As Vaidhyanathan admits he only highlights the danger of one court or Congress listening to copyright corporations and restricting the potential of information sharing that the Internet and the book project offers. That alone merits consideration. I do think, however, the paper makes some overstatements about search issues and “stable texts like books.” He argues that Google’s search in books lacks neutrality, and its utility alone will not save it because:

It is hardly an effective or comprehensive research tool. It generates too many ridiculous results for simple searches. It cannot screen out bad results very well. And Google offers no simple information-seeking training to its customers. Searching the text of books is rarely a better way to search than searching among books. Books are discreet documents that operate with internal cohesion more than external linkages.

This idea seems to suggest that those who use Westlaw or Lexis cannot find material well. I think Google supports some level of Boolean searches and Google could easily add subject matter indices to mimic library catalogs. In short, focusing on small issues such as improving the utility of the search detracts from the bigger point. Google can fix or enhance the searches. The improvements will not necessarily stop one of the key points made in the paper. True believer arrogance in the face of laws that see the world in quite a different way can lead to bigger problems. Here Google’s contract which gives libraries an electronic copy in return for participation runs into copyright law for the law is not sure what to do with such copying other than say it is not allowed.

Thus even though some libraries reject Google’s onerous terms, Google’s acts may foment a poorly written ruling or law that hinders other movements which seek to extend access to knowledge. For those interested in one such movement check out the Open Content Alliance.

Cross-posted at Madisonian

Crossing Lines

In cyberlaw, we are repeatedly reassured by leading companies that certain suspect actions just won’t happen because they don’t make economic sense. For example, opponents of net non-discrimination principles say that carriers have an economic incentive to maximize the value of that network, so they won’t discriminate against particular applications within it. But this assumption is now being challenged. . . . and we are seeing cases where a carrier may not merely discriminate against certain applications, but also conceal the fact that it is doing so:

Comcast is pretending to be part of online conversations in order to frustrate users who want to use particular online applications. This happens all the time in the name of “traffic shaping” — it’s the kind of thing that China does to interfere with internet use. What’s different and important about today’s story is that people have carefully experimented. We can now understand exactly what Comcast is doing.

More after the jump . . .

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