Author: Olivier Sylvain


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.


Internet Governance: When Domestic Public Law Is No More than Bluster

A couple weeks ago, in a post on the latest Internet dust-up du jour, I observed that Internet governance, such as it is, continues to be going through growing pains. Activity on the Hill yesterday on HR 1580 as well as my general, inexpert interest brings me back to the topic.

Yesterday, the House Committee on Energy and Commerce agreed to language addressed to nothing less than “Internet freedom.” After some wrangling between Democrats and Republicans over language, the bill to which Committee members unanimously agreed asserts that it is the policy of the U.S. “to preserve and advance the successful multistakeholder model that governs the Internet.” As innocuous as the language seems, the words chosen represent a compromise. Democrats disapproved of an earlier version of the bill that stated the official policy of the U.S. to be the promotion of “a global Internet free from government control.” Such broadly worded language, Democrats and others worried, invited challenges to all manner of government regulation, including FCC enforcement of “open Internet” rules. The agreed-to language accommodates the interest in diluting governmental control in Internet governance, while also furthering the cooperative, consensus-building model that seems to have functioned relatively well for the past decade and a half. In the end, that the Committee members from both parties could come to some agreement is, these days, short of a miracle. It remains to be seen whether both chambers are feeling agreeable.

HR 1580  is partly a response to recent efforts by some governments, including China and Saudi Arabia, to limit the policymaking authority of ICANN, the main transnational multistakeholder organization responsible for administering the Internet’s domain name system. These critics argue that, among other things, domestic intellectual property law and national security considerations ought to play a greater role. (For what it’s worth, the U.S. Commerce Department has expressed concerns about the difficulty for trademark owners to file timely defensive applications if anyone can apply for a top level domain name.)

Today, these governments manifest their concerns only through an advisory council within ICANN. For a decade now, these countries and others have unsuccessfully sought greater official state participation in global Internet policymaking, beyond the powers they already have under international treaties and through the International Telecommunications Union (ITU), an agency of the United Nations, in the global Internet and telecommunications governance regime. Their critique today is not directed solely at the substance of the policies promulgated by ICANN, but also to that organization’s constitutional legitimacy and policymaking processes.

As with others, I am suspicious of some of these governments’ intentions, particularly as I have a hard time understanding what it is they plan on advocating at the level of global Internet policymaking, but also because these very countries in particular are notorious for cracking down on domestic Internet users and dissidents.

Yet, at the same time, I also have doubts about the purpose and relative efficacy of the House’s recent effort. HR 1580 is hot bluster, as the language itself will have very little legal effect, other than occupy space in the congressional record. Just consider the statement released by Commerce Committee Chairman Fred Upton in which he asserts that the vote was “an important step in showing our nation’s resolve and it will send an important signal to the international community.”

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On Snarkiness: Evgeny Morozov’s To Save Everything Click Here

The title of Evgeny Morozov’s new book, To Save Everything Click Here: The Folly of Technological Solutionism, comes as no surprise to those of us who have read his book reviews, op-eds, and first book. Morozov has cultivated an important position in the grand debate about the place that Internet-based technologies have or, rather, ought to have in our lives today. He has distinguished himself above all as an equal opportunity take-down artist, unafraid to criticize the biggest names in Silicon Valley, punditry, and academia for their overdetermined claims about the meaning of the Internet.

As the title of his recent book suggests, Morozov believes that contemporary “Internet-centric” thinking clouds our judgment and ability to make choices for ourselves.  He argues that the social value of recent technological innovations is far more contingent than the breathless claims of pundits like Jeff Jarvis and Clay Shirky suggest. Technologists, journalists, scholars, and users, he argues, should treat every new product launch or beta release from Apple or Samsung or Facebook with the same healthy dose of skepticism that they reserve for everything else.

In short, To Save Everything methodically catalogs and then meticulously shoots down the fanfare associated with the marketing, reporting, and scholarship about technological innovation today. This is a formula that has served Morozov well for the past several years, and keeps readers coming back for more. The question is whether the critiques do anything more than temporarily rescue us from the mindless gushing about things like Google Glass, only for us to revert to our old ways after watching another carefully choreographed demonstration. And I’m afraid the answer is: no. Read More


The Spam Wars and Internet Governance. Again.

Every now and again, the obscure world of Internet administration comes into public view, and invites those of us in academia who have been thinking about the governance of the Internet and its infrastructure to revisit how undeveloped public law in this area is. One such moment occurred two weeks ago when Spamhaus, an important spam prevention service, became the victim of one of the most massive distributed denial of service (DDoS) attacks ever.

Two weeks later, Spamhaus appears to have weathered the attack. Soon after it realized the gravity of things, its administrators enlisted the services of a company that, among other things, protects against spamming and large DDoS attacks. And, while the attack does not seem to have been as dramatic as the NY Times and other media outlets purported late last week, I nevertheless remain uncertain about where we stand. For a phenomenon as essential to public life as email, the Spamhaus attack raises far more questions than it answers. At a minimum, it invites serious reconsideration of the extant approach, particularly when the only measure of legitimacy to administer email is raw technological savvy.

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On the Persistent Pertinence of Race (The Mobile Phone Use Edition)

This has been a notable month for those of us who casually or professionally monitor racism and racialism in our putatively post-racial era. Recent studies and news reports confirm that race apparently continues to matter to population distribution, poverty rates, and perceptions about the fairness of criminal justice in the U.S. None of these recent reports and findings reveal anything particularly new about how this world actually looks and operates, notwithstanding the talk about postracialism in America today.

One piece of data, however, continues to intrigue me.  According to a report from the Pew Internet and American Life Project published earlier this week, racial minorities rely on their mobile phones for Internet access and text messaging on a daily basis much more than whites. There is nothing particularly new in this information. Researchers have been reporting on the pertinence of age, race, gender, and geography on mobile phone use for some time now. And, for what it’s worth, media use generally has also long been shown to be determined in part by race.

It’s the sheer magnitude of this text messaging datum, however, that continues to strike me.  Blacks evidently use their mobile handheld devices to communicate more than people who self-identify as something other than black, doing so at two times the rate of whites. (They are apparently well overrepresented among Twitter users, too.) Certainly, other variables that are meaningfully correlated with race in the U.S. (i.e., wealth, educational opportunity, employment, and income) complicate the story.  But even those factors can’t explain the entire difference, as big as it is.

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The New Spectrum Scarcity

At first glance, President Obama’s proposed American Jobs Act was an unlikely place to find significant reforms to the laws governing the allocation of prized electromagnetic spectrum licenses. Since the 1990s, however, FCC-administered auctions have been a major source of revenue for the U.S. Treasury, generating billions of dollars for the exclusive license to commercialize coveted bands of the spectrum. Just a couple years ago, for example, the 700 MHz band once occupied by the major broadcasters generated a total of almost $20 billion in successful bids from the likes of AT&T and Verizon.

So, as the mood for fiscal austerity haunts the halls of Congress these days, it makes sense to expect spectrum auction policy to make an appearance in the Jobs Act.  As presented to Congress, Obama’s jobs law would commit a meaningful portion of an expected $28 billion or so of revenue from spectrum auctions to help pay down the U.S. deficit. The so-called “incentive auctions” would be for a band in the spectrum jealously controlled by major broadcasters today. The broadcasters would get a piece of the expected $28 billion for the trouble of participating. Another portion would be devoted to the development and operation of a national wireless public safety network. The remainder would go to reducing the debt or closing budget deficits. A relatively small contribution to the cause, but a contribution nevertheless.

The auctioning of rights to the spectrum, however, is not just meant to plug holes in the federal budget. The incentive auctions in the jobs bill are meant to partially redress one of the more pressing problems in telecommunications law and policy today: spectrum scarcity in the face of booming demand for high-bandwidth wireless services, smartphones, and tablets. For someone who spent years pondering the problem of scarcity in the first law to regulate the commercial use of the spectrum, these developments beg the question: How did scarcity resurface so seamlessly after about two decades of being poopoo’ed as the chief reason for spectrum regulation?

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Hacktivism, Anonymity, and Privacy

On Friday evening, within hours of posting U.S. Marshal Service mugshots of alleged members of Internet “hacktivist” group Anonymous, became the target of a relentless “distributed denial of service” or DDoS attack. According to a statement released by TPM founder and publisher Josh Marshall on TPM’s Facebook page, visitors could not access the site a little after 5 p.m. eastern time. While no one knows for sure, TPM has inferred that Anonymous or people affiliated with the group are probably responsible for the attack.  (That TPM turned to Facebook to publish a statement is ironic because Anonymous has vowed to shutdown the social networking site later this fall.) The TPM site remains down as of this posting.

According to Marshall, TPM filed a Freedom of Information Act request for the mugshots earlier this summer, and posted them as soon as they obtained them. For the past six years, according to Marshall, the news site has routinely “published mugshots of numerous people accused or convicted of various crimes” that are the subject of its reporting. I’ve clicked through the photos of hypocrites and hucksters in elective office as well as random mugshots of mobsters and celebrities to satiate an admittedly morbid curiosity. TPM, as with many other major news organizations, knows this. The questions for TPM are ethical and legal: what is it about these admittedly alluring photos of the smirks, glares, and shock typical of mugshots that adds to the story, and justifies the ostensible invasion of privacy?

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Hot Summer Flashes, Black Urban Mobs

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.
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