Law in the Internet Society

The following is my response/rebuttal to Eben's LawNetSoc? lecture given on Wednesday, September 30, 2015

-- By ShayBanerjee - 01 Oct 2015

My Background: Not Total Ignorance

Milward Brown Digital, Inc. (“MBD”) is a market research firm claiming to be “the world’s leading digital expert in helping clients grow great brands.” MBD leverages proprietary software to track consumer behavior and then sells aggregations of that data to clients. More specifically, companies such as Google, Facebook, Bank of America, and Wal-Mart pay millions for data studies derived from MBD’s “Consumer Input Panel.”

I took a job as a data analyst at MBD in May 2013. A bright-eyed graduate of Boston University (“BU”), I was eager to earn money and develop cutting-edge work experience before law school. Over the next fourteen months, I worked about 65 hours/week preparing customized industry reports on online consumer behavior. What does that task entail? Stay with me.

Picture that every time you visited a url, a log file was printed containing a user id, a time stamp, the visited url, the referral source, the time spent on page, and demographic information about you. We called this “clickstream” data, and we had it for over 2 million users.

Now imagine that every time you conducted a search on Google, Bing, Yahoo, etc. a log file was printed containing a user id; a time stamp; the search engine name; the search query; the title, ranking and url of every search result that appeared (the “impressions”); and the listing that you clicked. We called this “SERP” (search engine result page) data, and we had it for over 80,000 users.

Finally, imagine that the same company that had the above data also sent you periodic emails surveying you about your shopping behavior. This was called “attitudinal data,” and we had it for about 1 million users. Once we got their answers, we could match the user id against clickstream and SERP. So if we asked someone “have you purchased X product from Y site in the last 30 days” and she said “No,” we could tell if she was lying.

I worked with all of the above data, containing what likely amounted to trillions of log files going back over a decade. Using that data, I could tell clients that X percent of men under 25 bought a box of Trojan condoms from Amazon on March 25, 2011 or that Hispanic women on the West Coast spent on average Y seconds staring at that adorable cat video on Youtube.

That’s just client work. I also had full, 24-hour access to this data. What if I was less of an upstanding guy? Sure, the user ids were “anonymous,” but if I was dedicated I could have gotten around it. I could have gotten someone’s credit card number from that Amazon purchase form. I could have figured out who did that sketchy pornography search on February 8, 2007. I could have done a lot of things.

And what software did we use to complete all these evil data mining tasks that would have made Eben jump out of his socks? Yup, that's right: GNU/Linux.

My Perspective: The Relevance of Labor Time

I remain skeptical about the ability for the free software movement to solve the problem of subsistence. In my experience, most people do not use learning, education, and technology to solve social problems, but rather to pursue their own individualized economic goals. People who know the intricacies of CDOs, leveraged buyouts, climate denial, and wiretapping tend to be highly educated. That does not make their knowledge socially productive.

The fact is that providing the children of India and China with free software will accomplish little by itself. As long as they are anxious and hungry, like most Americans they will simply acquire the knowledge that is valued in the labor market. Since the factors of production condition human culture and knowledge acquisition by extension, it is most important to change the economic base and the incentive structure to which it aligns. Absent systemic changes in the economy itself, knowledge resources merely reinforce existing systems of exploitation.

All of this goes back to what we learned about political economy during the 19th century. Eben claims that in the digital universe the marginal cost of knowledge production and distribution is zero. The marginal cost, of course, is not zero, any more than the marginal cost of my spending the next three weeks lying on Jones Beach is zero. The cost in both cases is my time. In human economies, labor is the fundamental basis of value, and that value is expressed in time. Any time we spend playing NetWorldGame? or analyzing Volkswagon software is time that we are not working to accumulate the resources necessary to subsist. That might not be a problem for the predominantly upper middle-class white male population of techies whose writings we have been reading for this class, but it is a problem for most of the human race.

To be blunt, the problem is production, not consumption. All across the world, people are selling their labor time to socially unproductive enterprise in order to subsist. This is why Eben's final argument - that redistribution does not solve the problem of growth - is also wrong. Wealth redistribution encourages growth because it provides the poor with the freedom and time to pursue socially productive ends. In the mid-20th century, when, according to Eben, America was still "creating," we did not have any of the software toys he talks about. People who had the time to learn about social problems and solve them did so the old-fashioned way. What we did have back then was a substantially more equitable society than we do today.


When I graduated from BU, I felt the need to take a job at a company where the social impact of the work was questionable but the compensation was high. During the process, I acquired numerous technical skills, but did not use them on the sort of socially productive work Eben seems to believe flows organically from free software.

I am more class conscious than I was then, and at this stage I am lucky enough to not have to worry about going to bed hungry or homeless. To me, those two realities are the basis of my freedom and are what will help me drive social impact. The majority of the world does not have that. And I am not persuaded they will get it through the free software movement.

Shay, can you explain how and why you think Eben argued that socially productive work flows organically from free software? i don't think that's a correct summary. I think it's fair to say that unfree/proprietary software forecloses many possibilities for human progress, but that's quite a different concept. Do you agree with the latter idea as I have put it?

-- LizzieOShea - 01 Oct 2015

I don't need to explain, since I can just quote him from last week.

I think, as I said, that the point of attending to the brains growing within the network is that the brains thereby liberated think about the problems of survival and welfare of the people around them. By multiplying the quantity of human intelligence we multiply the intelligence devoted to human survival and welfare

To be absolutely precise, here I argue the diametric opposite of that last sentence. By multiplying the quantity of human intelligence we do not multiply the intelligence devoted to human survival and welfare. Instead given how the economy is structured we merely multiply the intelligence devoted to socially unproductive or counterproductive work.

To answer your second question (which, to be clear, involves a narrower claim than Eben is making), I will cede that free software makes learning easier, but I do not agree that proprietary software forecloses any possibilities for human progress. People find ways to learn what they need to learn. They have done so for thousands of years, long before computers, and will continue to do so long after either of us are gone. The point is to not to increase the amount of available knowledge, but to structure the economy in such a way that people spend their time acquiring the correct type of knowledge.

-- ShayBanerjee - 01 Oct 2015

Well, people have also been resisting and engaging in revolution for thousands of years and will continue to do so most likely regardless of whatever you or I do with our lives. But there are small but vital opportunities to contribute to creating those moments and helping to advance their cause when they take the stage. Of course, a piece of infrastructure like the internet, like power lines, like roads etc make life easier for people but do not make social change themselves. They will reproduce and reflect the inequality that is already in society. But freeing up those paths between people is a necessary project. They present great opportunities to connect people in ways that foster collaboration, solidarity and often critical thinking.

-- LizzieOShea - 03 Oct 2015

Lizzie, I greatly admire your repeated attempts to assuage two competing approaches to social action, but I fear that you have missed the point. Here you simply restate the perceived benefits of the incumbent approach without fully engaging with the central criticism brought by the insurgent. This makes sense to you because a recurring theme underlying your argument is that the two approaches are not mutually exclusive, and that so long as the incumbent appears even slightly productive, it is undeniably worth our time. That belief is erroneous and must be corrected before we continue this discussion any further.

By approaching this subject the way you have, you are de-politicizing an essentially political decision that is shaping our common life together. To teach a subject one way involves a conscious choice to not teach it another way. Students are at liberty to question that choice, which is undeniably political. Teachers are obliged to explain it.

As far as I can tell, the purpose of this class is - or ought to be - to teach law students how to drive social impact using the Internet. The question hidden beneath our entire discussion (until the end of this sentence) is simple: Is the curriculum that we have purchased the optimal way to fulfill that goal?

As I have stated, based on my personal experience and understanding of social theory (both of which are admittedly less expansive than Eben’s), it is not clear to me that mass distribution of knowledge resources constitutes the most productive form of social action (or even close to it). There are ways to teach law that at once center on the Internet and also are more overtly materialist. For whatever reason, we have chosen one and not the others.

Here we are socially conscious and talented individuals sitting in one of the most privileged institutions in the world. Why are we not learning how to use the Internet to fight economic inequality, reduce the cost of living, and restructure governmental institutions? Why are those being written off as secondary goals to take a back seat to discussions about IP laws, free education, and data privacy? The answers to those questions involve some sort of judgment about what it means to be a lawyer in the Internet society (and also a judgment about the definition of human freedom). I do not think I am out of line demanding an adequate explanation about where that judgment came from.

-- ShayBanerjee - 04 Oct 2015



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r9 - 04 Oct 2015 - 17:59:05 - ShayBanerjee
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