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FAN 101.3 (First Amendment News) Supreme Court Denies Review in Right of Publicity Case

In its order list today, the Supreme Court denied review in Electronic Arts, Inc. v. Davis. The issue in the case was whether the First Amendment protects a speaker against a state-law right-of-publicity claim that challenges the realistic portrayal of a person in an expressive work.

See FAN 83: “Paul Smith Files Cert. Petition in Right of Publicity Case” (Nov. 4, 2016)

The Court’s 2015-2016 First Amendment Docket

Cases Decided

** Shapiro v. McManus (9-0 per Scalia, J., Dec. 8, 2015: decided on non-First Amendment grounds) (the central issue in the case relates to whether a three-judge court is or is not required when a pleading fails to state a claim, this in the context of a First Amendment challenge to the 2011 reapportionment of congressional districts) (from Petitioners’ merits brief: “Because petitioners’ First Amendment claim is not obviously frivolous, this Court should vacate the judgments of the lower courts and remand the case with instructions to refer this entire action to a district court of three judges.”) (See Rick Hasen’s commentary here)

Review Granted

  1. Heffernan v. City of Paterson (cert. petition,  amicus brief) (see blog post here)
  2. Friedrichs v. California Teachers Association, et al. (all briefs here) (Lyle Denniston commentary)

Oral Arguments Schedule 

  1. January 11, 2016:  Friedrichs v. California Teachers Association, et al. (transcript here)
  2. January 19, 2016:  Heffernan v. City of Paterson (see Howard Wasserman SCOTUSblog commentary here)(transcript here)

Review Denied

  1. Electronic Arts, Inc. v. Davis
  2. American Freedom Defense Initiative v. Massachusetts Bay Transportation Authority 
  3. Bell v. Itawamba County School Board (see also Adam Liptak story re amicus brief)
  4. Town of Mocksville v. Hunter
  5. Miller v. Federal Election Commission
  6. Sun-Times Media, LLC v. Dahlstrom
  7. Rubin v. Padilla
  8. Hines v. Alldredge
  9. Yamada v. Snipes
  10. Center for Competitive Politics v. Harris
  11. Building Industry Association of Washington v. Utter (amicus brief)

Pending Petitions*

  1. Justice v. Hosemann 
  2. Cressman v. Thompson
  3. POM Wonderful, LLC v. FTC (Cato amicus brief) (D.C. Circuit opinion)

First Amendment Related Case

  • Stackhouse v. Colorado (issue: Whether a criminal defendant’s inadvertent failure to object to courtroom closure is an “intentional relinquishment or abandonment of a known right” that affirmatively waives his Sixth Amendment right to a public trial, or is instead a forfeiture, which does not wholly foreclose appellate review?)  (see Reporters Committee for Freedom of the Press amicus brief raising First Amendment related claims)

Freedom of Information Case

 The Court’s next Conference is on March 25, 2016.

Though these lists are not comprehensive, I try to track as many cases as possible. If you know of a cert. petition that is not on these lists, kindly inform me and I will post it.

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FAN 101.2 (First Amendment News) Judge Garland on the First Amendment: Opinions & Votes   

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Here is an early snapshot of some of Chief Judge Merrick Garland’s opinions and votes in First Amendment free speech cases:

Ruggiero v. Federal Communications Commission (D.C. Cir., 2003, en banc) (joined majority opinion by C.J. Ginsburg denying First Amend. challenge to  restrictions on licenses for low-power radio stations) (separate concurrences by Randolf, J., and Rogers, J., and dissent by Tatel, J.)

— Initiative & Referendum Inst. v. U.S.P.S. (D.C. Cir., 2005) (Garland, J., for the Court) (sustaining First Amendment challenge of U.S. Postal regulation prohibiting solicitation of signatures outside post offices).

— Thompson v. District of Columbia (D.C., Cir., 2005) (Tatel, J., for majority joined by Garland, J., with Edwards, J., concurring) (reinstated plaintiff’s First Amend. claim that he was fired for exercising his free-speech rights) (NB: Judge Edwards’ concurrence: “given the posture of this case, it would appear that the disposition of the First Amendment claim may dispose of the entire case.”)

Lee v. Dep’t of Justice (D.C. Cir. 2005, en banc) (per curiam,  Garland, J., dissenting from the denial of rehearing en banc) (Garland: “The only way to render the reporter’s privilege effective in the face of Privacy Act claims is to include the requirement . . . that the court “weigh[ ] the public interest in protecting the reporter’s sources against the private interest in compelling disclosure,” Zerilli, 656 F.2d at 712.”)

— Boehner v. McDermott (D.C. Cir, 2007, en banc) (Randolph, J., majority, with Sentelle, J., dissenting joined by Garland, J. & others)

Commentary:

  • Reporters Committee (2015): (“In the dissent joined by Judge Garland, Judge Sentelle wrote that “the issue is: ‘Where the punished publisher of information has obtained the information in question in a manner lawful in itself but from a source who has obtained it unlawfully, may the government punish the ensuing publication of that information based on the defect in a chain?’” Judge Sentelle wrote that he would answer that question “in the negative,” and that the U.S. Supreme Court decision in Bartnicki v. Vopper (2001), which was decided after the first appeal in this case, made clear that such action should not be punished.”

— National Association of Manufacturers v. Taylor (D.C. Cir., 2009) (Garland, J., unanimous: 3-0)

Commentary:

  • Richard Hasen, “Judge Merrick Garland: A Moderate Liberal on Election Law Issues, With Questions About Boldness,” Election Law Blog, March 17, 2016 (The “NAM decision . . . carefully applies precedent, and is not reluctant to uphold disclosure requirements in the face of unsubstantiated claims of harassment. the judge also signed a 2008 decision, Shays v. FEC, which required the Federal Election Commission to craft tougher regulations to implement the campaign finance law.”)

— SpeechNow.org v. Federal Election Commission (D.C. Cir.,2010, en banc) (Sentelle, C.J., unanimous: 9-0)

(Oral arguments audio)

Commentaries:

  • HasenJudge Merrick Garland” (“my view is that a Justice Garland would be moderately liberal on election law issues, probably voting with the four more liberal Justices in most election cases.” . . . .”we should not read too much into Judge Garland’s vote in the SpeeechNow case, the case which established Super PACs. As I explained that unanimous ruling was compelled by the Supreme Court’s Citizens United decision.”)
  • Damon Root, “Merrick Garland on Citizens United, the First Amendment, and Campaign Finance Regulation” (“Notably, the D.C. Circuit rejected the FEC’s attempt to distinguish Citizens United, which struck down an expenditure limit, from the SpeechNow case, which dealt with a contribution limit. In other words, the D.C. Circuit had an opportunity to accept the federal government’s narrowing analysis of Citizens United and it rejected that narrowing analysis. Among the judges who joined the D.C. Circuit’s opinion in SpeechNow.org v. FEC was Merrick Garland, who is now President Obama’s nominee to replace Justice Antonin Scalia on the U.S. Supreme Court.”)
  • John Light, “Merrick Garland Could Mean a New Chapter in the Fight to Reverse Citizens United,” Moyers & Co., March 16, 2016 (“Garland’s decision on SpeechNow does not necessarily indicate how he would vote on a case seeking to reverse Citizens United, should one reach the bench, reformers believe. “We personally think that there’s a lot of daylight between Citizens United and SpeechNow,” said Greytak. Stephen Spaulding, senior policy counsel and legal director at Common Cause, argued that Garland’s ruling could be explained by the fact that federal appeals court judges are bound by Supreme Court precedent. The year SpeechNow came before the DC Circuit, the justices already, through Citizens United, were sending a pretty clear message about how the high court felt about super PAC spending.”)

— American Meat Institute v. U.S. Department of Agriculture (D.C. Cir., 2010, en banc) (Williams, J., Garland, C.J., joining majority, Rogers, J., concurring in part, Kavanaugh, J., concurring in judgment, & Brown, J., dissenting) (Upholding over a First Amend, challenge Ag. Dept. rule requiring labels on meat to identify where the animal was born, raised and slaughtered)

→ (Oral arguments audio)

Commentary:

— POM Wonderful v. Federal Trade Commission (D.C. Cir., 2015) (per Srinivasan, J., unanimous: 3-0) (upholding FTC decision that the juice company made deceptive claims about its drinks’ health benefits)

→ (Oral arguments audio)

Commentaries:

  • Rich Samp, “The D.C. Circuit’s POM Wonderful Decision: Not So Wonderful for FTC’s Randomized Clinical Trial Push” (2015) (“the ruling is far from the sweeping endorsement of FTC advertising-control measures that the Commission might have been hoping for. In particular, the ruling provides little, if any, support for the FTC’s recent assertions that food and dietary supplement manufacturers are largely barred from including health-related claims on product labels unless their claims are supported by randomized and controlled human clinical trials (“RCTs”). To the contrary, the appeals court made clear medical studies that do not meet RCT standards may nonetheless have considerable value, and that the FTC’s regulation of advertising is subject to strict First Amendment limitations. The decision suggests that courts may be very reluctant to uphold the FTC’s application of RCT standards to claims that a product promotes general health and nutrition, as distinct from claims that a product is effective in preventing or curing specific diseases.”)

— Wagner v. Federal Election Commission (D.C. Cir., 2015) (Garland, J., unanimous: 3-0)

→ (Oral arguments audio)

Commentary: 

  • Hasen, “Judge Merrick Garland” (“the way that Judge Garland wrote the decision indicates that he accepts Congress’s role in crafting reasonable campaign finance regulations aimed at protecting government interests. Judge Garland could have written the opinion in a reluctant way, noting that Supreme Court cases like Citizens United and McCutcheon may have undermined the constitutionality of total bans on contributions by any class of contributors.”)

Hasen on Garland & Citizens United:

“The harder question is what a Justice Garland would do, if faced on the Supreme Court with the opportunity to overturn Citizens United. On the merits, I have little doubt he would have been in the dissent in the original Citizens United case. But the question is one of stare decisis (respect for precedent) now. Would he be willing to overturn such a case, just a few years after the controversial ruling? My guess is that his would be a struggle for him, less about the merits of the case and more about the proper role of the Justice (particularly if he becomes the new swing Justice) on a Court that is ideologically and politically divided.” (Source: HasenJudge Merrick Garland“) 

Reporters Committee releases report on Judge Garland’s First Amendment and Freedom of Information decisions (2015)

 FAN 101.1:  “Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

See also Tom Goldstein, “The Potential Nomination of Merrick Garland,” SCOTUSblog, April 26, 2010

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The “We” That Haunts Our Digital Age

“Seen from this angle, the emphasis on what we must do as ethical selves, each and every one of us—us digital subjects, with our desires and our disobedience—may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one.”

                                                                           — Exposed: Desire and Disobedience in the Digital Age, p. 283.

In her brilliant post, Mary Ann Franks highlights the unequal exposure at the heart of our digital age and puts her finger on the most important sentence of Exposed: there is indeed a “we” that haunts this book, that haunts our digital age in fact, and it is precisely that “we” that we must keep at the very heart of our digital debates.

As Franks highlights and as David Pozen and Olivier Sylvain earlier suggested, the digital world is by no means an undifferentiated space. In Exposed, I underscore those differences. In the “The Mortification of the Self,” I underline how our digital world cuts deeply along lines of class and gender. In “The Steel Mesh,” I emphasize how our digital exposure is deeply differentiated by race and ethnicity. In “The Collapse of State, Economy, and Society,” I detail the labor, wealth, and disability effects. The NYPD social media unit does not simply target anyone, it targets minority suspects, especially “crew members…. They listen to the lyrical taunts of local rap artists, some affiliated with crews, and watch YouTube for clues to past trouble and future conflicts.” (Exposed, 243) The cameramen behind the CCTV’s don’t target anyone, but women sunbathing, and the “police officers radio each other to say ‘oh there’s a MILF over here, come over here.’” (230) Many of the women respondents in studies recount being “seen on camera and identified as not having had a top on in a park, even though they had a bikini top on— with the police saying repeatedly, ‘We just saw you on camera’” (230) The surveillants also target those in “hoodies, tracksuits, or trainers,” signs of the more popular classes. And of course, the NSA targets Muslim radicalizers. (247)

The steel mesh that surrounds us is by no means color-blind, and neither are the new forms of GPS monitoring. “In 2008, one out of nine young adult black men between the ages of twenty and thirty four—or approximately 11 percent of that population— was incarcerated in prison or jail in the United States. As of 2011, more than 2 million African American men were either behind bars or under correctional supervision (that is, had been arrested and processed by the criminal justice system and were on probation, on parole, or behind bars). That too represents about 11 percent of the total population of black men—one out of nine.” (235) And there are increasingly gender disparities in the carceral sphere: “The Immigrations and Customs Enforcement (ICE) field office in New York dramatically increased the number of women monitored by GPS-enabled ankle bracelets, up roughly 4,000 percent in 2104 alone, from 18 to 719.” (238)

Indeed, our digital world is becoming, for many, a steel mesh. “We watch and are watched, we knowingly strap surveillance devices on our bodies— and then some of us are arrested, some of us are disconnected, some of us are extracted.” (253) Yes, some of us, but of course, not all, and we tend to know who. As I suggested in my last post on the “Damn Daniel!” phenomenon, the digital space elides all kinds of race and class distinctions, but we need to resist that and bring it to the surface.

Despite all the unequal exposure, we need to speak as a “we,” not as that “they” that Franks concludes with. Not only because even those of us who are being surveilled and punished are at times exposing ourselves and also watching others, but because it is only as a “we” that we will be able to address the excesses of our expository society, each and every one of us—us digital subjects, with our desires and our disobedience.

This has been a thrilling symposium and I thank my interlocutors—Lisa Austin, Ann Bartow, Mary Ann Franks, Solangel Maldonado, Frank Pasquale, David Pozen, and Daniel Solove—immensely. I have learned a lot.

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Unequal Exposure

Towards the end of the breathless and impassioned tour through privacy, surveillance, carcerality, and desire that is Exposed, Bernard Harcourt writes that “the emphasis on what we must do as ethical selves, each and every one of us – us digital subjects – may be precisely what is necessary for us to begin to think of ourselves as we. Yes, as that we that has been haunting this book since page one” (283). The call for unity and solidarity is seductive: if “we” are all exposed and vulnerable, then “we” can all resist and demand change. But that “we” – that reassuring abstraction of humanity and human experience – is not in fact what haunts this book. That “we” – unquestioned, undifferentiated, unmarked – is taken for granted and treated as the universal subject in this book. What truly haunts this book is everything that this “we” obscures and represses. Harcourt’s “we” is remarkably undifferentiated. Nearly every point Harcourt makes about how “we” experience digital subjectivity, surveillance, and exposure would and should be contested by women, people of color, the poor, sexual minorities (and those who belong to more than one of the categories in this non-exhaustive list). It is unfair, of course, to expect any one book or any one author to capture the full complexity of human experience on any topic. One writes about what one knows, and nuance must sometimes be sacrificed for the sake of broad theory. But there is a difference between falling short of conveying the diversity of human experience and barely acknowledging the existence of differentiation. If one of Harcourt’s goals is to lead us to “think of ourselves as we,” it is vital to recognize that  “we” in the digital age are not equally represented, equally consenting or resisting, or equally exposed.

Let’s begin with Harcourt’s characterization of the digital age as a study in shallow positivity: “We do not sing hate, we sing praise. We ‘like,’ we ‘share,’ we ‘favorite.’ We ‘follow.’ We ‘connect.’ ‘We get LinkedIn.’ Ever more options to join and like and appreciate. Everything today is organized around friending, clicking, retweeting, and reposting. … We are appalled by mean comments – which are censored if they are too offensive”(41). This is a picture of the digital world that will be  unrecognizable to many people. There is no mention of online mobs, targeted harassment campaigns, career-destroying defamation, rape and death threats, doxxing, revenge porn, sex trafficking, child porn, online communities dedicated to promoting sexual violence against women, or white supremacist sites. No mention, in short, of the intense, destructive, unrelenting hatred that drives so much of the activity of our connected world. Harcourt’s vision of our digital existence as a sunny safe space where occasional “mean comments” are quickly swept from view is nothing short of extraordinary.

Next, consider Harcourt’s repeated insistence that there are no real distinctions between exposer and exposed, the watcher and the watched: “There is no clean division between those who expose and those who surveil; surveillance of others has become commonplace today, with nude pictures of celebrities circulating as ‘trading fodder’ on the more popular anonymous online message boards, users stalking other users, and videos constantly being posted about other people’s mistakes, accidents, rants, foibles, and prejudices. We tell stories about ourselves and others. We expose ourselves. We watch others” (129). There are, in fact, important divisions between exposers and the exposed. With regard to sexual exposure, it is overwhelmingly the case that women are the subjects and not the agents of exposure. The nude photos to which Harcourt refers weren’t of just any celebrities; they were with few exceptions female celebrities. The hacker in that case, as in nearly every other case of nude photo hacking, is male, as is nearly every revenge porn site owner and the majority of revenge porn consumers. The “revenge porn” phenomenon itself, more accurately described as “nonconsensual pornography,” is overwhelmingly driven by men exposing women, not the other way around. Many of Harcourt’s own examples of surveillance point to the gender imbalance at work in sexual exposure. The LOVEINT scandal, the CCTV cameras pointed into girls’ toilets and changing rooms in UK schools (229), and Edward Snowden’s revelations of how the NSA employees share naked pictures (230) primarily involve men doing the looking and women and girls being looked at. The consequences of sexual exposure are also not gender-neutral: while men and boys may suffer embarrassment and shame, girls and women suffer these and much more, including being expelled from school, fired from jobs, tormented by unwanted sexual propositions, and threatened with rape.

There are also important distinctions to be made between those who voluntarily expose themselves and those who are exposed against their will. In the passage above, Harcourt puts nude photos in the same list as videos of people’s “rants, foibles, and prejudices.” The footnote to that sentence provides two specific examples: Jennifer Lawrence’s hacked photos and video of Michael Richards (Seinfeld’s Kramer) launching into a racist tirade as he performed at a comedy club (311). That is a disturbing false equivalence. The theft of private information is very different from a public, voluntary display of racist hatred. In addition to the fact that naked photos are in no way comparable to casual references to lynching and the repeated use of racial slurs, it should matter that Jennifer Lawrence was exposed against her will and Michael Richards exposed himself.

It’s not the only time in the book that Harcourt plays a bit fast and loose with the concepts of consent and voluntariness. In many places he criticizes “us” for freely contributing to our own destruction: “There is hardy any need for illicit or surreptitious searches, and there is little need to compel, to pressure, to strong-arm, or to intimidate, because so many of us are giving all our most intimate information and whereabouts so willingly and passionately – so voluntarily” (17).  And yet Harcourt also notes that in many cases, people do not know that they are being surveilled or do not feel that they have any practical means of resistance. “The truth is,” Harcourt tells us with regard to the first, “expository power functions best when those who are seen are not entirely conscious of it, or do not always remember. The marketing works best when the targets do not know that they are being watched” (124). On the second point, Harcourt observes that “when we flinch at the disclosure, most of us nevertheless proceed, feeling that we have no choice, not knowing how not to give our information, whom we would talk to, how to get the task done without the exposure. We feel we have no other option but to disclose” (181-2). But surely if people are unaware of a practice or feel they cannot resist it, they can hardly be considered to have voluntarily consented to it.

Also, if people often do not know that they are under surveillance, this undermines one of the more compelling concerns of the book, namely, that surveillance inhibits expression. It is difficult to see how surveillance could have an inhibiting effect if the subjects are not conscious of the fact that they are being watched. Surreptitious surveillance certainly creates its own harms, but if subjects are truly unaware that they are being watched – as opposed to not knowing exactly when or where surveillance is taking place but knowing that it is taking place somewhere somehow, which no doubt does create a chilling effect – then self-censorship is not likely to be one of them.

Harcourt suggests a different kind of harm when he tells us that “[i]nformation is more accessible when the subject forgets that she is being stalked” (124). That is, we are rendered more transparent to the watchers when we falsely believe they are not watching us. That seems right. But what exactly is the harm inflicted by this transparency? Harcourt warns that we are becoming “marketized subjects – or rather subject-objects who are nothing more than watched, tracked, followed, profiled at will, and who in turn do nothing more than watch and observe others” (26). While concerns about Big Data are certainly legitimate (and have been voiced by many scholars, lawyers, policymakers, and activists), Harcourt never paints a clear picture of what he thinks the actual harm of data brokers and targeted Target advertisements really is. In one of the few personal and specific examples he offers of the harms of surveillance, Harcourt describes the experience of being photographed by a security guard before a speaking engagement. Harcourt is clearly unsettled by the experience: “I could not resist. I did not resist. I could not challenge the security protocol. I was embarrassed to challenge it, so I gave in without any resistance. But it still bothers me today. Why? Because I had no control over the dissemination of my own identity, of my face. Because I felt like I had no power to challenge, to assert myself” (222). While one sympathizes with Harcourt’s sense of disempowerment, it is hard to know what to think of it in relation to the sea of other surveillance stories: women forced to flee their homes because of death threats, parents living in fear because the names of their children and the schools they attend have been published online, or teenaged girls committing suicide because the photo of their rape is being circulated on the Internet as a form of entertainment.

Harcourt uses the term “stalk” at least eight times in this book, and none of these references are to actual stalking, the kind that involves being followed by a particular individual who knows where you live and work and means you harm, the kind that one in six women in the U.S. will experience in her lifetime, the kind that is encouraged and facilitated by an ever-expanding industry of software, gadgets, and apps that openly market themselves to angry men as tools of control over the women who have slipped their grasp. What a privilege it is to be able to treat stalking not as a fact of daily existence, but as a metaphor.

Harcourt’s criticism of what he considers to be the Supreme Court’s lack of concern for privacy adds a fascinating gloss to all of this. Harcourt takes particular aim at Justice Scalia, asserting that even when Scalia seems to be protecting privacy, he is actually disparaging it: “Even in Kyllo v. United States…. where the Court finds that the use of heat-seeking technology constitutes a search because it infringes on the intimacies of the home, Justice Scalia mocks the humanist conception of privacy and autonomy.” The proof of this assertion supposedly comes from Scalia’s observation that the technology used in that case “might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath – a detail that many would consider ‘intimate.’” Harcourt assumes that Scalia’s reference to the “lady of the house” is an ironic expression of contempt. But Scalia is not being ironic. Elsewhere in the opinion, he emphatically states that “[i]n the home… all details are intimate details,” and many of his other opinions reinforce this view. Scalia and many members of the Court are very concerned about privacy precisely when it involves the lady of the house, or the homeowner subjected to the uninvited drug-sniffing dog on the porch (Florida v. Jardines, 2013), or the federal official subjected to the indignity of a drug test (Treasury Employees v. Von Raab, 1989 (dissent)). These same members of the Court, however, are remarkably unconcerned about privacy when it involves a wrongfully arrested man subjected to a humiliating “squat and cough” cavity search (Florence v. Burlington, 2012), or a driver searched after being racially profiled (Whren v. US, 1996), a pregnant woman tricked into a drug test while seeking prenatal care (Ferguson v. Charleston, 2001 (dissent)). In other words, the problem with the Supreme Court’s views on privacy and surveillance is not that it does not care about it; it’s that it tends to care about it only when it affects interests they share or people they resemble.

The world is full of people who do not have the luxury of worrying about a growing addiction to Candy Crush or whether Target knows they need diapers before they do. They are too busy worrying that their ex-husband will hunt them down and kill them, or that they will be stopped and subjected to a humiliating pat down for the fourth time that day, or that the most private and intimate details of their life will be put on public display by strangers looking to make a buck. These people are not driven by a desire to expose themselves. Rather, they are being driven into hiding, into obscurity, into an inhibited and chilled existence, by people who are trying to expose them. If “we” want to challenge surveillance and fight for privacy, “they” must be included.

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Law and Digital Ascesis

Bernard Harcourt Exposed 02

In their insightful comments, Lisa Austin and Olivier Sylvain argue that we might want to place greater faith in law to redress the excesses of our expository society. As Austin writes, she and Sylvain, as well as Ann Bartow, “see a stronger role for law.” I am willing to be convinced if someone could offer some persuasive evidence.

In Law We Trust

As best I can tell, the federal courts have shown little willingness to protect privacy. The two federal courts that ruled in favor of privacy—Judge Richard Leon at the DC District Court and the Second Circuit in ACLU v. Clapper—both stopped short of enforcing their mandate. In both cases, the courts found for the plaintiffs, but refused to enjoin the intelligence program because the stakes were too high. Recall that Judge Leon stayed his injunction in 2013 “in light of the significant national security interests at stake in this case and the novelty of the constitutional issues;” he only enjoined the program a couple of years later when it was practically dead. The Second Circuit, for its part, found the program illegal in Clapper, but then refrained from enjoining it since the issue was being debated by Congress. In other words, even when constitutional or statutory rights were declared to be infringed, the law offered little recourse. A somewhat flaccid response, I would say.

Not surprising, though, given the political constraints imposed on the selection of federal judges. As we know all too well, there are real constraints on judicial selection that influence the politics of the federal bench, as evidenced by the nomination just today of DC appeals court judge Merrick Garland to the US Supreme Court. It’s hard to imagine a robust privacy-protecting federal bench, faced with national security interests, in light of all the political constraints on the nomination process, from the district to the supreme court.

This doesn’t mean that, as lawyers, we give up and stop petitioning the courts. No, of course, we continue to file suit. In fact, this coming week, I’ll be filing a cert petition at the U.S. Supreme Court in an Alabama death penalty case involving an egregious instance of judicial abdication. We go on, we litigate, we have little choice. But we don’t necessarily place blind faith in the law.

In terms of law-making, the record is also bleak. Congress and the Obama Administration barely scratched at the surface of the Snowden revelations with the USA FREEDOM act last June. The reform did nothing to address the myriad intrusive NSA programs—PRISM, UPSTREAM, UNBOUNDED INFORMANT, etc.—focusing instead on the high-profile, but low-impact Section 215 bulk telephony metadata collection program. And the legislation hardly modified the program, instead merely deputizing the telecom companies to serve as data custodians.

If anything, the legislative reform smelled more of neoliberal profit-making than privacy protection. As you know, the fine print in the FREEDOM Act provided that the U.S. taxpayers would compensate the telecoms for holding their data. As Reuters reported, “The Freedom Act does contain a provision to compensate companies for costs they incur holding and turning over such data, which is something the carriers made clear they wanted in return for agreeing to store the data.” And that was pretty much baked into the cake from the get go. President Obama’s hand-picked advisors had recommended this “mutually beneficial” arrangement early on. In their report, Liberty and Security in a Changing World, Obama’s advisors wrote that “it would be in the interests of the providers and the government to agree on a voluntary system that meets the needs of both,” and, they added, if such a mutually agreeable deal could not be worked out, “the government should reimburse the providers for the cost of retaining the data.” Clearly, this was an economic win-win solution for the government and the telecoms—though perhaps not for tax-paying citizens.

The ink was hardly dry on the legislation before another Snowden leak confirmed that AT&T—our newfound guardian angels—had  willingly worked with the N.S.A. to provide access “to billions of emails as they have flowed across its domestic networks” and “installed surveillance equipment in at least 17 of its Internet hubs on American soil.” Those newly leaked documents reveal that AT&T was particularly solicitous over the period ranging from 2003 to 2013: “AT&T was the first partner to turn on a new collection capability that the N.S.A. said amounted to a ‘live’ presence on the global net.’” Early on, their partnership fueled an intelligence program that, in a single month, “forwarded to the agency 400 billion Internet metadata records” and “more than one million emails a day to the keyword selection system” at NSA’s headquarters in Fort Meade, Md. According to the NSA’s internal documents, AT&T’s “corporate relationships provide unique accesses to other telecoms and I.S.P.s.” As the New York Times reported, “One document reminds N.S.A. officials to be polite when visiting AT&T facilities, noting, ‘This is a partnership, not a contractual relationship.’”

That’s the company that is now protecting us. Yes, the same company that has willingly gone out of its way, for decades, to provide access behind the scenes to our intelligence agencies. Hardly another victory for the law. And, of course, the record is no better elsewhere. In France, for instance, the Paris attacks led to their own adoption of a PATRIOT Act à la française. But as I said, I am willing to be persuaded, if anyone can present some evidence of law’s effectiveness—not just its promise.

Digital Ascesis

Olivier Sylvain also raises the interesting alternative of an ascetic turn in today’s digital age in his post on “Disobedience, Asceticism, and Disparity.”

Now, I should emphasize at the outset that I did not intend to advocate for asceticism in the context of our digital desireTo be honest, I cannot imagine turning the clock back on the digital age or putting the genie back in the bottle. I don’t think we can take time out from the digital age. I know that I certainly cannot, given that my professional existence now revolves around e-mails, pdf scans, e-calendaring, Orbitz, Doodle, etc. As I mention throughout Exposed, even those who would like to avoid the digital age have no choice but to participate. We are inextricably implicated in silicon.

Asceticism is probably unlikely, but the notion of a “digital ascesis” is interesting. The term asceticism, Kyotoas you know, has its roots in the  Greek word askēsis, meaning “exercise” or “training.” It represents the notion of a particular mode of existence or way of life. Several colleagues and I have been studying this concept with Judith Butler and Rosi Braidotti in a faculty seminar over the past few months; and I am particularly interested in the notion of ascesis this week, as I have been traveling and visiting Kyoto, Japan, in connection with a conference later this week. The question here is whether we might explore our digital existence and experiences, today, as a mode of life, and, if so, whether we might learn how to modify this digital ascesis?

This may seem like an incongruous way in, but in order to study our present digital ascesis it might be worth looking at the most recent (and now passé, one can only hope) Internet phenomenon, one that exploded in February 2016 in the United States. It was that short video made on an iPhone, using Snapchat, of a young man, Daniel Lara (aged 14), caught on camera on successive days, showing off his stylish shoes, with an overlaid voice, each day and each time, saying “Damn, Daniel!” On particular snippets, when Daniel is wearing particular shoes—white slip-on Vans—the voiceover says “Damn, Daniel! Back at it again with those white Vans!”

The short video, only 30-seconds long, was made public on February 15, 2016, and went viral in matter of days. It had over 45 million views by the time the two boys—Daniel and Joshua Holtz (aged 15)—were invited on the Ellen Degeneres Show on February 24, 2016. The boys have become overnight celebrities because of the supposed catchiness of the meme “Damn, Daniel!”

 

 

Within days, songs and remixes were being written and produced using the meme. Rappers Little, Teej, and LeBlanc created a track using the meme, raising issues of race and white privilege; another remix was by Suhmeduh. Celebrities as far and wide as Justin Bieber, Kanye West, and Kim Kardashian are now sporting white Vans, riffing off the meme. On February 25, 2016, the New York Times (yes, even the Times wrote about it!), referring to the video as “the latest Internet sensation,” reported that “Daniel said that he can’t even go to the mall or a swim meet without being asked for photos with his fans or getting marriage proposals.”

Although easily dismissed as just “entertaining nonsense”—that’s how the New York Times started its article about the Internet phenomenon, describing it as “a meme ris[ing] up from the wondrous bog of entertaining nonsense that is the Internet”—the fact is, the “Damn, Daniel!” meme is very telling about our present digital ascesis.

This digital phenomenon played out through hundreds of thousands of “likes” and tens of millions of “shares,” “follows,” and “clicks.” And it represented a mode of life. A style of existence. The pool. The white Vans. The swim team. The tanned boys and girls. It both reflects and it influences, subliminally, the experiences of so many adolescents and young adults in the U.S. And, of course, it hides or elides so much.

What, for instance, is not in the video or on the Ellen Degeneres show? Well, for one thing, the political economy surrounding how those white Vans are produced and make their way to the poolside at Riverside High School, or the differential treatment that young black teenagers might get at their high school. All of the politics are elided behind the apparent pleasure of the meme.

So, for instance, the video is permeated by neoliberal consumerism, with the focus on Daniel’s different fashionable shoes. Daniel sports a different pair of new shoes practically every day, with the climax being his white Vans. It’s unclear whether the shoe company, Vans, was in on the phenomenon, according to the Times; but they certainly have benefited commercially. They could not have produced a more effective commercial. The whole phenomenon centers on consumption and the commercialization of those white Vans, masquerading under the surface of popularity.

There is also a racial dimension to the meme. It is filmed by white boys at an apparently white high school in Riverside, California, and has all the trappings of white privilege: sunny, monied, fashionable, blond-haired boys and girls. The rappers Little Feat, Teej & LeBlanc make the racial dimensions clear in their take, suggesting that black kids might not so easily get away with the same things, rapping as well on the racial-sexual innuendos surrounding the phenomenon. “Back at it again with the white Vans. Back at it again with the black Vans. […] Black canvas with the black stiches and the white slit […] Lunch table with some white bitches, after school with some white bitches, sniffing lines with them white bitches…” The white vans symbolize, for these rappers, white privilege. “Vans on, they are Mr. Clean.”

But notice that all of these political, racial, consumerist dimensions are elided  through the process of addictive web surfing, clicking, and downloading. As of February 22, 2016, seven days in, it had 260,000 retweets and 330,000 “likes” on Twitter. The official YouTube version had almost 1.5 million views on February 27, 2016, with 13,617 “likes.” With all these likes, the politics are simply buried under the popularity of the video.

How would it be possible to modify this digital ascesis in such as way as to highlight the political dimensions and expose the consumerism and racial dimensions? How would it be possible to highlight how power circulates in our digital ascesis? Without advocating asceticism, how could we possibly adjust our new mode of living? Those, I take it, are questions that we should be asking ourselves today.

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The Fragility of Desire

In his excellent new book Exposed, Harcourt’s analysis of the role of desire in what he calls the “expository society” of the digital age is seductive. We are not characters in Orwell’s 1984, or prisoners of Bentham’s Panopticon, but rather are enthusiastic participants in a “mirrored glass pavilion” that is addictive and mesmerizing. Harcourt offers a detailed picture of this pavilion and also shows us the seamy side of our addiction to it. Recovery from this addiction, he argues, requires acts of disobedience but there lies the great dilemma and paradox of our age: revolution requires desire, not duty, but our desires are what have ensnared us.

I think that this is both a welcome contribution as well as a misleading diagnosis.

There have been many critiques of consent-based privacy regimes as enabling, rather than protecting, privacy. The underlying tenor of many of these critiques is that consent fails as a regulatory tool because it is too difficult to make it truly informed consent. Harcourt’s emphasis on desire shows why there is a deeper problem than this, that our participation in the platforms that surveil us is rooted in something deeper than misinformed choice. And this makes the “what to do?” question all the more difficult to answer. Even for those of us who see a stronger role for law than Harcourt outlines in this book (I agree with Ann Bartow’s comments on this) should pause here. Canada, for example, has strong private sector data protections laws with oversight from excellent provincial and federal privacy commissioners. And yet these laws are heavily consent-based. Such laws are able to shift practices to a stronger emphasis on things like opt-in consent, but Harcourt leaves us with a disquieting sense that this might just be just an example of a Pyrrhic victory, legitimizing surveillance through our attempts to regulate it because we still have not grappled with the more basic problem of the seduction of the mirrored glass pavilion.

The problem with Harcourt’s position is that, in exposing this aspect of the digital age in order to complicate our standard surveillance tropes, he risks ignoring other sources of complexity that are also important for both diagnosing the problem and outlining a path forward.

Desire is not always the reason that people participate in new technologies. As Ann Bartow and Olivier Sylvain point out, people do not always have a choice about their participation in the technologies that track us. The digital age is not an amusement park we can choose to go to or to boycott, but deeply integrated into our daily practices and needs, including the ways in which we work, bank, and access government services.

But even when we do actively choose to use these tools, it is not clear that desire captures the why of all such choices. If we willingly enter Harcourt’s mirrored glass pavilion, it is sometimes because of some of its very useful properties — the space- and time-bending nature of information technology. For example, Google calendar is incredibly convenient because multiple people can access shared calendars from multiple devices in multiple locations at different times making the coordination of calendars incredibly easy. This is not digital lust, but digital convenience.

These space- and time-bending properties of information technology are important for understanding the contours of the public/private nexus of surveillance that so characterizes our age. Harcourt does an excellent job at pointing out some of the salient features of this nexus, describing a “tentacular oligarchy” where private and public institutions are bound together in state-like “knots of power,” with individuals passing back and forth between these institutions. But what is strange in Harcourt’s account is that this tentacular oligarchy still appears to be bounded by the political borders of the US. It is within those borders that the state and the private sector have collapsed together.

What this account misses is the fact that information technology has helped to unleash a global private sector that is not bounded by state borders. In this emerging global private sector large multinational corporations often operate as “metanationals” or stateless entities. The commercial logic of information is that it should cross political borders with ease and be stored wherever it makes the most economic sense.

Consider some of the rhetoric surrounding the e-commerce chapter of the recent TPP agreement. The Office of the US Trade Representative indicates that one of its objectives is to keep the Internet “free and open” which it has pursued through rules that favour cross-border data flows and prevent data localization. It is easy to see how this idea of “free” might be confused with political freedom, for an activist in an oppressive regime is better off in exercising freedom of speech when that speech can cross political borders or the details of their communications can be stored in a location that is free of the reach of their state. A similar rationale has been offered by some in the current Apple encryption debate — encryption protects American business people communicating within China and we can see why that is important.

But this idea of freedom is the freedom of a participant in a global private sector with weak state control; freedom from the state control of oppressive regimes also involves freedom from the state protection of democratic regimes.

If metanationals pursue a state-free agenda, the state pursues an agenda of rights-protectionism. By rights protectionism I mean the claim that states do, and should, protect the constitutional rights of their own citizens and residents but not others. Consider, for example, a Canadian citizen who resides in Canada and uses US cloud computing. That person could be communicating entirely with other Canadians in other Canadian cities and yet have all of their data stored in the US-based cloud. If the US authorities wanted access to that data, the US constitution would not apply to regulate that access in a rights-protecting manner because the Canadian is a non-US person.

Many see result as flowing from the logic of the Verdugo-Urquidez case. Yet that case concerned a search that occurred in a foreign territory (Mexico), rather than within the US, where the law of that territory continued to apply. The Canadian constitution does not apply to acts of officials within the US. The data at issue falls into a constitutional black hole where no constitution applies (and maybe even international human rights black hole according to some US interpretations of extraterritorial obligations). States can then collect information within this black hole free of the usual liberal-democratic constraints and share it with other allies, a situation Snowden documented within the EU and likened to a “European bazaar” of surveillance.

Rights protectionism is not rights protection when information freely crosses political boundaries and state power piggybacks on top of this crossing and exploits it.

This is not a tentacular oligarchy operating within the boundaries of one state, but a series of global alliances – between allied states and between states and metanationals who exert state-like power — exploiting the weaknesses of state-bound law.

We are not in this situation simply because of a penchant for selfies. But to understand the full picture we do need to look beyond “ourselves” and get the global picture in view. We need to understand the ways in which our legal models fail to address these new realities and even help to mask and legitimize the problems of the digital age through tools and rhetoric that are no longer suitable.

Lisa Austin is an Associate Professor at the University of Toronto Faculty of Law.

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Some Thoughts on the Garland Nomination

I interviewed for a clerkship with Judge Garland right after he was confirmed to the D.C. Circuit.  It was a disaster, but entirely because I was young and didn’t understand how to handle those sorts of situations.  He’s an excellent judge, though I don’t think that Senate Republicans will allow the nomination to go forward for now.

I want to make two observations about this choice.  One is that it shows how hard it is break the recent paradigm for Supreme Court Justices (someone from Yale or Harvard who served as a federal appellate judge).  Only Elena Kagan partially breaks with this template (she was not a judge) going all the way back to Sandra Day O’Connor.

The other is that I think this choice could pose a problem in the Fall.  Suppose that in October Senate Republicans look at the polls and conclude that Hillary will win and the Democrats will take back the Senate.  Or suppose it’s November and those things have happened.  At that point Garland will look a lot better than what’s behind Door #2.  If they try to confirm Judge Garland then, though, will Hillary or some Senate Democrats object and try to hold out for a different choice?  Would the nomination be renewed in January 2017 under those circumstances?

In the end, I wonder if Judge Garland will be another Al Gore.  You win the prize, but you don’t receive the prize.

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FAN 101.1 (First Amendment News) Merrick Garland, law clerk to Justice Brennan when Hutchinson v. Proxmire (1979) was decided

Today, President Obama nominated D.C. Circuit Chief Judge Merrick Garland to serve as an Associate Justice on the Supreme Court.

Chief Judge Merrick Garland

Chief Judge Merrick Garland

Judge Garland served as a law clerk to Second Circuit Judge Henry Friendly and thereafter as a clerk for Justice William J. Brennan. Garland’s clerkship at the Court was during the 1978-1979 Term.

During that Term the Court decided Hutchinson v. Proxmire (argued April 17, decided June 26, 1979). The vote was 8-1 with Chief Justice Warren Burger writing for the majority and Justice Brennan writing in dissent.

Facts in the Case: “In early 1975, Senator William Proxmire implemented what he called the “Golden Fleece Award of the Month.” The award was given out to governmental agencies which sponsored programs and research that Proxmire found to be a waste of tax dollars. One Golden Fleece went to federal agencies sponsoring the research of Ronald Hutchinson, a behavioral scientist. Proxmire detailed the “nonsense” of Hutchinson’s research on the floor of the Senate, in conferences with his staff, and in a newsletter sent to over 100,000 of his constituents. Hutchinson sued for libel, arguing that Proxmire’s statements defamed his character and caused him to endure financial loss.”

Issues: “The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue.”

First Amendment Ruling: Petitioner is not a “public figure” so as to make the “actual malice” standard of proof of New York Times Co. v. Sullivan applicable. Neither the fact that local newspapers reported the federal grants to petitioner for his research nor the fact that he had access to the news media as shown by reports of his response to the announcement of the Golden Fleece Award, demonstrates that he was a public figure prior to the controversy engendered by that award. His access, such as it was, came after the alleged libel and was limited to responding to the announcement of the award. Those charged with alleged defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. Nor is the concern about public expenditures sufficient to make petitioner a public figure, petitioner at no time having assumed any role of public prominence in the broad question of such concern.

Justice Brennan’s Dissent: “I disagree with the Court’s conclusion that Senator Proxmire’s newsletters and press releases fall outside the protection of the speech-or-debate immunity. In my view, public criticism by legislators of unnecessary governmental expenditures, whatever its form, is a legislative act shielded by the Speech or Debate Clause. I would affirm the judgment below for the reasons expressed in my dissent in Gravel v. United States (1972).”

Counsel in the Supreme Court:

  • Michael E. Cavanaugh argued the cause and filed a briefs for Petitioner.
  • Alan Raywid argued the cause and filed a brief for Respondents.

Amicus Briefs:

  • Bruce J. Montgomery and John D. Lane filed a brief for the American Psychological Association et al. as amici curiae urging reversal.
  • Briefs of amici curiae urging affirmance were filed by Richard M. Schmidt, Jr., for the American Society of Newspaper Editors et al.
  • Chester H. Smith for Warren G. Magnuson et al. Stanley M. Brand filed a brief for Thomas P. O’Neill, Jr., Speaker of the United States House of Representatives, et al.
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FAN 101 (First Amendment News) Levine & Wermiel on First Amendment & Right of Publicity — Using Justices’ Papers to Understand Zacchini v. Scripps-Howard Broadcasting Co.

Zacchini offers little or no guidance in cases involving mere depictions of individuals, as opposed to appropriation of their actual performances in full. — Paul M. Smith (cert. petition in Electronic Arts v. Davis)

Nothing in the Court’s opinion [in Zucchini] suggested that its analysis would have been different had the news broadcast been limited to a five- or ten- second excerpt . . . . — Brian D. Henri (brief in opposition in Electronic Arts v. Davis)

Lee Levine

Lee Levine

Lee Levine and Stephen Wermiel are at again — digging in Justices’ personal papers to reveal how the law of a First Amendment case came to be, replete with surprises and insights.

First they started with a law review article: “The Landmark that Wasn’t: A First Amendment Play in Five Acts,” Wash. L. Rev. (2013), which gave rise to several commentaries.

Then came a book: The Progeny: Justice William J. Brennan’s Fight to Preserve the Legacy of New York Times v. Sullivan (2014). Now comes their latest work, “The Court & the Cannonball: An Inside Look,” American U. L. Rev. (forthcoming 2016).

In their latest work, Levine ( a seasoned media law lawyer & casebook author) teams up once again with Wermiel (law professor, Brennan Biographer & former WSJ reporter) to dig up the inside history of another First Amendment case — this time Zacchini v. Scripps-Howard Broadcasting Co. (1977), a 5-4 ruling.

The Facts: In 1972, Hugo Zucchini performed as a “human cannonball” at the Geauga County Fair in Burton, Ohio. In his act, Zucchini was shot out of a cannon and into a net 200 feet away. His performance lasted 15 seconds.  During one of these performances, a Scripps-Howard Broadcasting Co. freelance reporter attended the fair, replete with a movie camera. Petitioner noticed the reporter and asked him not to film the performance. Respondent honored the request that day but returned the following day and videoed the entire act. This 15-second film clip was shown on the evening news, together with favorable commentary. Petitioner brought a tort action (right of publicity) for damages and Respondent raised a First Amendment defense, among other things.

See “Zucchini: Human Cannonball” documentary trailer

Prof. Stephen Wermiel

Prof. Stephen Wermiel

The issue in the case was: Do the First and Fourteenth Amendments immunize the Scripps-Howard Broadcasting Co. from damages for its alleged infringement of an entertainer’s state-law right of publicity?

→ The Supreme Court Lawyers:

  • John G. Lancione argued the cause and filed a brief for Petitioner.
  • Ezra K. Bryan argued the cause for Respondent.

→ Judgment: 5-4 in favor the Petitioner. Justice Byron White wrote the majority opinion and Justices Lewis Powell and John Paul Stevens each wrote separate dissents.

→ Enter Levine & Wermiel: Here are a few excerpts from their forthcoming article:

“Although the 1977 ruling is often cited as holding that the right of publicity tort survives constitutional scrutiny under the First Amendment, an examination of the case and of the Supreme Court Justices’ available papers shows that the Court did not view the case as presenting the type of claim that has become prevalent today.”

Hugo Zacchini; human cannon ball; in position for great blast off.

Hugo Zacchini; human cannon ball; in position for great blast off.

“For the Supreme Court, the internal papers indicate the case was about the right of a performer/producer to control the display of his entire act. The Court was not focused on the more contemporary claim that athletes, celebrities, and others have a right to control the use by anyone else, especially for commercial purposes, of their name or their visual image. Nor did the Court’s ruling address the First Amendment issue raised in contemporary cases when a name or likeness is used in a creative work or other public communication. . . . .”

Conclusion: “If nothing else, the record of the Court’s deliberations in Zacchini appears to support the view that that decision does not purport to speak to the viability of a First Amendment-based defense to the kind of “right of publicity” claims asserted by contemporary plaintiffs seeking compensation for the use of their name, likeness, or even their performance, in the context of a video game, sporting event, news report or other creative work produced by someone else. To the contrary, the Court’s deliberations in Zacchini suggest that, at least in contexts where the asserted “right of publicity” is not akin to a claim for common law copyright, there is no basis to depart from traditional modes of First Amendment analysis and engage instead in the kind of ad-hoc balancing of state-created and constitutional rights . . .”

Judge Srinivasan on Free Speech Read More

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Disobedience, Asceticism, and Disparity

I am grateful to Concurring Opinions for the invitation to participate in this symposium on Bernard Harcourt’s elegant and timely book, Exposed.  My comments here repeat and elaborate some of the remarks I offered at a Columbia faculty workshop on the book earlier this year.

I want to hone in here on two aspects of Exposed. The first continues the #ApplevFBI conversation that Frank Pasquale’s post has started in this symposium. The second takes up the role of individual discipline against desire, where I associate myself with the skepticism that David PozenDaniel Solove, and Ann Bartow express about disobedience as a form of reform online.

Public-Private Collaborations in Surveillance

The most troubling feature of the surveillance state, according Exposed, is the way in which current governmental intelligence agencies have forcibly deputized information service providers under cover of law.  Statutes like the Foreign Intelligence Surveillance Act, the Patriot Act, and the Electronic Communications Privacy Act have made federal and state surveillance far reaching; under these authorities, online transactions and conduct that many of us have long presumed are insulated from public view are now available for use and abuse by powerful public and private actors.

Of course, government-mandated public-private collaborations in national security and law enforcement are not novel.  The recent high-profile contests between the Department of Justice and Apple over the San Bernadino terrorist’s iPhone and in another case arising out of Brooklyn, are just the most recent episodes in the longstanding saga over whether and how much governments can commandeer private firms in the name of national security or law enforcement.

As Exposed suggests, there are good reasons to think that the more recent disputes involving mobile devices are different.  Yesteryear’s cases involved technologies that are simply not as powerful as iPhones and smartphones generally.  Of course, smartphones of today afford users easy access to an ostensibly unlimited number of resources.  They also are deeply embedded in our daily routines.

On the other hand, all of these great new affordances also make smartphones terrific repositories of and gateways to users’ personal information.  Apple knows this, of course.  That is why it is leveraging its deep-pockets and strong brand loyalty to invest in even more powerful encryption protocols and technologies for the iOS8 that will make today’s disputes moot.

But Apple’s stake in all of this is really just secondary.  The core question is how far the public-private collaboration in surveillance that Exposed identifies can go.  It is a pressing enough matter that a stunning array of who’s who in networked information technology has filed briefs and, in the process, projected this run-of-the-mill pretrial procedure into a cause célèbre for national security proponents and civil libertarians alike.

Discipline Against Desire: Not for Everyone

Exposed paints a picture in which we – most users – are complicit in perpetuating the whole arrangement.  The remedy for this failing is not so much a matter of reaching the right balance in law and policy, although that is certainly part of the fix.  The real challenge, Exposed argues, is to have users reject the impulse to so willingly give in.  Reform requires a new kind of personal discipline.  Consider the last sentences of the book:

Revolutionaries often forget, or do not like to recognize that one wants and makes revolution out of desire, not duty,” Deleuze and Guattari remind us in Anti-Oedipus.  What a cruel reminder, given that it is precisely our desires and passions that have enslaved us, exposed us, and ensnared us in this digital shell as hard as steel.  What a painful paradox.  What a daunting prospect.  That, I take it, is our greatest challenge today.

In some regards, it can’t be wrong that widespread resistance to the networked world will deliver us from the current state of affairs.  But one must wonder at the feasibility of this kind of grassroots reform, since, all substantive policy reform (in, for example climate change policy, immigration reform, policing) requires some degree of political will.

Defiance here may also be impossible, since, even in Exposed’s own account, users generally have no choice but to be connected. This is to say nothing of the communities across the U.S. and around the world that are desperate for networked connections.  Everything from political organizing, the provisioning of healthcare, and ordering a taxi requires a live and reliable networked connection.  Defiance is unresponsive to this fact.  At worst, it would only engender its own problems, not the least of which would be the perpetuation of disparity between networked elites (including those who have helped to engineer our information ecosystem) and the underserved (including communities who are lucky if they have a stripped down version of Facebook).

Exposed concedes that the latter – those “on the other side of the divide” – do not figure in its analysis.  But perhaps they should, particularly since low income people, blacks, and Latinos are disproportionately likelier to access the Internet through a mobile device than a PC.  This is significant if mobile devices expose users to far more invasive forms of surveillance, like law enforcement’s use of devices that mimic cell tower signaling to capture phone data.  In any case, what are we to do with the new programs that the FCC and others have developed very recently to expand public subsidies and other redistributive broadband efforts that are meant to improve the quality of online connections for the underserved today?  Should those go too?  How far should disobedience go without worsening inequality in access?

Exposed aims in the end to trigger a change of heart; it wants to cure users’ relative indiscipline as much as (if not more than) reform the incentives that drive firms and service providers to traffic in users’ personal information.  As such, it is above all a call to a kind of Thoreau-inspired quasi-religious asceticism against desire.  On the one hand, this may be soft stuff compared to the vast political economy and tens of billions of dollars that app developers stand to reap by making every click and swipe as viscerally pleasurable as possible.  On the other hand, if enough of us can muster the will to stay offline or at least constrain the information we are willing to volunteer away (say, on Buy Nothing Day, after Thanskgiving), we might begin to see positive change.  Until then, I will not be the one to tell those “on the other side of the divide” to disobey or stay away, for fear of what they’d be missing.  At a minimum, there are too many examples in just the past couple of years in the U.S. to suggest that online engagement might actually fuel offline activism against racially discriminatory policing.