Author: Ann Bartow


Naked and Afraid

“Exposed” author Bernard E. Harcourt does an outstanding job of describing what he calls our “Expository Society” in the book’s introduction, observing that “everything we do in our new digital age can be recorded, stored and monitored,” (p. 1) and explaining in detail how and why it happens, and ways to think about the situation.  The introduction does a nice job of cueing up the topics Harcourt will cover in the rest of the work. It also foreshadows the complexity of ideas and expression that the reader is about to encounter.

If all you want to know from this review is whether I recommend buying and reading this book, my recommendations are, yes and yes.  It’s not the kind of book that you will likely read at a single sitting, but if you persist, it draws you back and you will find yourself thinking about its lessons frequently.  I certainly have. Nevertheless, in the spirit of this group review, I offer the following criticisms:

  1. Writing Style

“Exposed” is an excellent book in many ways.  It covers a lot of important information in minute detail, and it raises many provocative questions.  But after the introduction, something about the tone of the book becomes decidedly off-putting.   Harcourt uses devices like deployment of the pronoun “we” to avoid sounding mocking or condescending, but it doesn’t quite work.  For example, Harcourt writes: “Most often we expose ourselves for the simplest desires, the pleasure of curiosity, a quick distraction—those trifling gratifications, that seductive click the iPhone shutter makes, the sensual swoosh of a sent email.” (p. 15). And he asserts we lack discipline. (p. 17).  And he says: “it is precisely our desires and passions that have enslaved us, and ensnared us in this digital shell as hard as steel.” (p. 283). There is aggressive shaming here and throughout the book that the author’s self-inclusion by use of the first person plural does not dilute.

Although the writing is at times very elegant, it also runs to the impenetrable.  For example, Harcourt’s infatuation with Foucault takes even the well-known panopticon privacy metaphor and makes it obtuse.   A little over a third of the way into the tome I encountered this paragraph:

“The ambition of virtual transparence magnifies the disciplinary ambition of visibility within enclosed structures.  Recall that there was an important gradual evolution from rendering visible to transparency during the disciplinary turn.  “The old simple schema of confinement and enclosure, Foucault wrote, “began to be replaced by the calculation of openings, of filled and empty spaces, passages and transparencies.”  Rendering visible would develop into internal transparency, to the point that the panopticon itself would “become a transparent building in which the exercise of power may be supervised by society as a whole.”  Foucault refers to Bentham’s panopticon as his “celebrated, transparent, circular cage,” and places the element of transparency at the center of the panoptic principle: it is what made “architecture transparent to the administration of power.” The element of transparency played an important role in the internal structure of the disciplinary edifices. “The perfect disciplinary apparatus would make it possible for a single gaze to see everything constantly,” Foucault emphasized.”” (p. 119-20).

If you can absorb all that in the first reading, I congratulate you.  But I don’t know too many people outside of academia and maybe a few think tanks who will want to put as much work into its reading as this book demands.  The writing is breathtakingly brilliant in places, but its accessibility to even educated and highly interested readers may be limited.  Expressing complicated ideas in clear language is hard but worth it. If the wonderful and clear writing Frank Pasquale had not recommended this book so strongly, I am not sure I would have made it through the first couple of chapters or agreed to write this review.

  1. Uncharitable Generalizations of  We the Proletariat

So engaged is he in excoriating us for indulging our desires and passions online, Harcourt fails to fully acknowledge the degree to which people are compelled to participate in what he describes as our current digital situation. I don’t know anyone in real life who doesn’t “get” the importance of privacy.  I don’t know anyone in real life who doesn’t care about their privacy.  And I definitely don’t know anyone personally who thinks they don’t have to worry about privacy if they aren’t doing anything wrong.  Google CEO Eric Schmidt reportedly once said: “If you have something that you don’t want anyone to know, maybe you shouldn’t be doing it in the first place.”  But this is a fairly anomalous statement, made by a man who profits directly and greatly from personal data.  Of course he would like to shame people into disregarding their own privacy.   But there is no evidence that he has succeeded.

In the world of ordinary people, every single person I know has had an unpleasant airport security line episode, or has found fraudulent charges on a credit card bill, or had an email or Facebook account hacked, or an interception of their income tax refund, or some other identity theft issue.  No one is complacent!  All are aggrieved.  But there is no clear path to better privacy or security.  You can’t (or at least definitely shouldn’t) avoid filing your federal tax forms, even though the IRS is demonstrably terrible at keeping them confidential.  You can’t stop eating or wear clothes, so you have to buy food and clothing somewhere.

People who travel need access to plane tickets, hotel rooms, and rental cars.  Some travel is for hedonic purposes, which Harcourt might be especially judgmental about if we are inattentive to personal privacy concerns, but many of us also need to travel for work.  This requires credit cards, and therefore involuntary contributions to data streams.  Many of us have to advance the funds for work related travel out of our own pockets and on our personal credit cards, and then wait to be reimbursed, sometimes for lengthy intervals. Compromising our data privacy along the way is simply another burden we bear.  We need the rental car waiting for us in the parking garage when it is very late or very early and the service desk is closed. We loath flying a tiny bit less if we can occupy one of the plane’s aisle seats.  It’s nice to have free wifi at a hotel, because otherwise we might have to pay for it out of pocket. And if submitting great swaths of personal information to the government in exchange for “TSA pre-check” at airports means an extra hour of pre-flight sleep in the morning, should we really be ashamed of this sybaritic desire?  Is forgoing an “easy pass” and instead waiting in long lines to pay highway tolls with cash the kind of activism that is going to foster a privacy revolution?

  1. Under-Appreciation of Law as a Tool for Digital Resistance

Even simple new legislation can improve lives and lived privacy. For example, implementation of a short, clear law establishing privacy favoring defaults on commercial websites could be a simple way to start changing the culture of online commerce.  I prefer not to “remain signed in” to any website.  Because “remain signed in,” or “remember me” are the proactive defaults at most websites, this means I have to affirmatively uncheck the “remain signed in” or “remember me” boxes dozens of times each day.  Occasionally I forget or am unable to uncheck the box, and have to figure out how to log out of a website, which is rarely obvious.  If the law required an unchecked “remain signed in” or “remember me” box as the default, joining the production of an online data stream by signing on permanently to a website would require a volitional act. This would improve privacy and enhance awareness about data collection. The same sort of law could require online merchants to give consumers the option not to have their credit card information stored by the store website, and even make a “do not remember credit card info” option the default, leaving less information around for hackers to appropriate as well as improving the privacy climate.

These and other relatively small changes instigated by new laws could eventually lead, albeit incrementally, to significant changes.  A federal data breach notification statute could replace and improve upon 47 different state law approaches, and enhance the lives of people living in the three states with no data breach notification laws at all. Another possibility is a law that forces venders on and offline to offer the same prices to customers who do not have “loyalty cards” or memberships as to those who do, so that no one will have to cede personal data for a product discount.

Ultimately individuals in the United States would benefit from a European Union style approach to data privacy.  Harcourt indirectly makes the case for why it is needed, but doesn’t advance the cause overtly.  Instead he advises readers about technological steps they can take if they can afford them and understand computers well enough to implement them.  And then he insists we engage in resistance, in the form of hip, edgy political disobedience. I think direct lobbying for a better legal regime will be more effective in the long run. The two approaches are not mutually exclusive of course, but I think that openly and assertively advocating for specific new laws could be the most effective mechanism for change, and attract the most support.


Configuring the Networked Self: Perspectives from China

To start with, I liked the book a lot. It is interesting and engaging and extremely well written. I appreciated Julie Cohen’s fearless and articulate challenges to dominant strains of legal academic liberalism more than I can express. This book will motivate a lot of scholars to think more deeply about our work, as well we should.

I also think that Julie Cohen’s recognition of the freighted disengagement of information privacy activism with information access theory, and information activism with information privacy theory, is brilliantly insightful. The freedom/control binary is something every Internet Law and Intellectual Property Law legal scholar wrestles with in some form (and arguably we are hardly alone in this, subject matter wise). We want the machinery of the law to support good things and restrict bad ones. And we are often optimistic that this can be achieved in particularized contexts if only the applicable government actors can be educated and energized. But we tend not to integrate our practical impulses with overarching theories in ways that allow us to advocate effectively for important general principles while still situating each affected person as an individual end, which is a prime directive of a capabilities focus. Julie Cohen takes us to task for this, and correctly so.

I’ll segue now into a series of “Hey, I’m an individual end too!” related observations about reasons for the lateness of my Symposium contribution. I am currently serving as a 2011-12 Fulbright Scholar at Tongji University in Shanghai, China. Though Tongji University is a top tier national research institution, my Internet access is limited, to put it lightly. It was only by waking at 2 am and logging on to my laptop within the chilly confines of my concrete box apartment for three consecutive nights that I was able to gain access to this book, by downloading it one glacially accruing chapter at a time, from here ( ), after the Tongji students had retired to their beds and relinquished a bit of bandwidth. Having agreed to participate in this Symposium with some enthusiasm, I had tried to get the Yale University Press to snail mail me a hard copy while I was back in the United States for a couple of weeks in late January, but to no avail. I point that out not to be snarky (well, maybe a little) but to introduce my main critique of the book, which is that you can’t easily theorize your way around or out from under the idiosyncrasies of inconsistent authoritarianism. It is impossible for even a motivated self to rationally mediate what she doesn’t understand and can’t predict, no less control.
To illustrate further by ongoing personal anecdote: Receiving a free hard copy of the book was my preferred path to situational flourishing. Receiving free books generally is one of the best perquisites of academia, and something I hope I will never again take for granted. Buying an authorized hard copy of Configuring the Networked Self here in China, if it is even possible, is likely to be an egregiously expensive proposition. An electronic copy for my Kindle would have set me back $43 plus international delivery fees. While I appreciate and benefited from Julie Cohen’s willingness to make the book available for downloads that do not require dollars, the cost of acquiring the tome from her website was actually pretty steep in terms of time, frustration and lost sleep. I am very grateful to have Internet access at all, but unlike most Chinese people I discuss the matter with, I know what I am missing, in terms of speed and performance.

My understanding is that the Internet here is intentionally slowed, to facilitate monitoring of users. I do not have any expectation of privacy here in China, either on or offline. And I am well aware of the vaunted Great Firewall of China. But I saw no indication of any effort to intentionally block or even encumber access to the online version of the book under discussion. The fact that each chapter had to be downloaded individually was a contributing impediment I cannot blame Chinese Internet for. I must also note that several of my students offered to rise at 2 am and do the downloading for me so that I “could have a good rest,” demonstrating the astounding cultural veneration of professors here. I could not have in good conscience accepted these ridiculously kind offers but the fact that they were sincerely made is also relevant to my capabilities/functioning continuum.
The capabilities approach Julie Cohen embraces requires an understanding that conversions of the exact same commodities (e.g. commoditized music, computer software, Internet access generally, and Julie Cohen’s book specifically) will lead to different levels of functioning for consumers due to variations in the characteristics of the societies in which people live. Societal structures and constraints influence choices that can move capabilities to functionings, or impede this progress.

While the book certainly acknowledges this abstractly, it doesn’t fully account for semi-networked realities such as: mine, which required me to choosing between three nights of adequate sleep, and paying more for an e-book than I did for a brand new, fairly nice bicycle, complete with basket, bell and u-lock; or that of one of my Tongji colleagues, who cannot realistically afford either a Kindle or the 300 to 400 rmb an authorized copy of the book would cost, on a salary of about 4,000 rmb per month, and who has an infant child who already makes sleep a scare commodity. Both my colleague and I are professionally flourishing in our own inimitable ways, but he has to work far harder at it than I do, and both of us currently struggle more to stay informed about our topical areas of interest than almost any American law professor reading this. Yet we are still far more informationally privileged than many people within China. I am not sure how well Configuring the Networked Self really speaks to either our situations or our situatedness. But it was still a great read.


CCR Symposium: Maybe we can’t make Cyberspace better than meet space, but why allow it to be worse?

Way back when I was in law school, I worked on litigation aimed at protesters who tried to prevent women from entering health facilities where abortions were made available. The judges involved had to balance the protesters’ speech rights against the rights of women to travel where they wanted to go, and as I remember it, convincing courts that is was a civil rights issue was tricky. Danielle Citron needed to make a very strong case for why online actions can compromise civil rights, and as both Frank Pasquale and James Grimmelmann have observed in their symposium posts here, she succeeds brilliantly, but see Orin Kerr’s skepticism.

Many participatory sectors of the Internet are dominated by aggressive bullies, nasty haters and monetizing opportunists. It’s hard to tell whether they constitute a numeric majority, but the geography of the Internet allows a small number of people to scorch vast swaths of earth with surprisingly little effort. There is currently no such thing as the “safe spaces on the web where those with unpopular views can exchange ideas without fear of retribution” that Frank Pasquale calls for. Not even here. The folks running this symposium decided not to facilitate comments on CCR related posts here at Concurring Opinions, but they have no control over the conversations that take place other places, which may be intractably linked to this blog via hyperlinks and search engine results. I’m doubtful that the architecture of the Internet can be changed to provide the benefits of connectivity without simultaneously facilitating engagement or intervention by bad actors.

To segue back to reproductive freedom, one of the most trenchant things I’ve seen written about the right to abortion is that most women who oppose it believe there should be three classes of exceptions: 1. The life of the mother; 2. Cases of rape and incest; and 3. Them. Seriously, I’ve listened to people explain that abortion is murder unless the 15 year old asking for one is their daughter, and then it is perfectly justified. In the course of doing legal work for reproductive services providers I’ve seen a number of cases where women who literally stood outside of clinics picketing and shouting at people later asked for abortions for themselves or their children. As you might imagine, reproductive rights clinics fear that these women want to set them up for something bad down the road, such as a lawsuit, or to gain entry to their offices to do violence to the people inside, so these situations receive a fair amount of scrutiny. The egregious level of hypocrisy is stunning.

So it is with some civil libertarians and the Internet. Anonymity and unfettered speech are terrific up until they are the ones being challenged or attacked. See also. For another classic example, go here and note that the ACLU has a locked Wikipedia page because apparently too many editors were writing things the ACLU didn’t like, so the civil rights organization found a way to silence its wikicritics. See also. Wikipedia is far less solicitous of (for example) feminists who are public intellectuals. Pornography proselytizers constantly edit and re-edit their entries, filling them with misinformation. When the feminists request locked pages, they are not only denied, but mocked and criticized just for asking. It isn’t just marginalized groups that are victimized online, but they are disproportionately targeted, and may have fewer options or resources to minimize the harms or fight back.

As to whether the law can effectively address online civil rights violations, Citron is appropriately cautious. The culture of the Internet simply replicates a lot of real space phenomena that plague subordinated groups. Read the e-mail contained in Orin’s post here. Try to think of the last time you saw a virulent expression of anger, online or off, that didn’t feminize or homosexualize the target. Using gendered insults is one of the many ways that gender binaries are culturally enforced everywhere, but the situation worsens dramatically on the Internet, for reasons Citron explains.