Lecture Notes for Jan 16, 2009

• The course started in 1997, and the course has never stayed the same from year to year

• Intended to explain the relationship between techno-social change and the state’s relationship with the people who live in those states

• First taught as the upcoming withering away of the state

• First two times it was taught, it was a seminar in the dynamics of weakening of state power and the increases of non-state power

• Post-September 11, there were thousands of pieces of reading that were useful to understand what was happening, and it was no longer about the withering away of the state

• Most difficult to understand what’s going on with respect to surveillance, data mining, government activity in the internet in the United States

• Terrorists, of course, were the most likely to be snooping, but the official government policy was to watch what it said online

• U.S. became the most difficult/dangerous place in the world to study the very thing that Moglen was studying before from a more optimistic point of view

• Here, things have changed more rapidly and less predictably than in other areas

• Balance of power between state and citizen is now battled in communications environments which we take for granted

• Under constant reshaping change

• To some extent, this is a “current affairs” course

• What is current is already old

• Trying to help us as lawyers to get past what is current, and allow anticipation of the events of the near future

• Basics of the relationships between citizens and the state will be set pretty firmly within the next few decades

• Building of a network guaranteeing either freedom or unfreedom of the individuals living within it

• Significant and important progress in making educational accessible to everyone, regardless of social position

• Surveillance is taking us way backward → total knowledge of individual lives is trivially easy by states and private actors

• Far greater abilities than 20th Century totalitarianism

• Opposition to totalitarianism was a moral imperative that was supposed to justify the creation of thousands of nuclear capabilities

• We claimed opposition to totalitarianism was such a threat that we waged wars and committed tons of atrocities in opposition to it

• Threat to human dignity and autonomy was used to justify ultimate violence

• Attempts at totalitarianism in the 20th Century are mere primitive experiments

• Now, we are watching as the structures around us are transforming to enable perfect and comprehensive surveillance and control far outpacing anything in the 20th century

• See: “The Lives of Others”, a movie that illustrated the system of surveillance that the former German Democratic Republic had instituted.

• Consider the nature of Google’s/Facebook’s interaction with your life

• Why do you think the CIA invests in Facebook?

• Why do we expose and convey the nature of our dreams, plans, future for all to see

• Takes nothing more than a signature to gain access

• This course is beyond that:

• We are considering all the different ways in which the various technological and social innovations that we can use to change the relationships between the citizen and the state

• Crypto-wars → led to a much more comprehensive relationship between electronic commerce and private data collection (because of lack of e-cash)

• Uncomfortably close to Oppenheimer

• We’ll begin the conversation within the context of the Bill of Rights of the U.S. Constitution

• Not only the U.S. Constitution, but Constitutions in general → governments of limited powers

• There is a place for civil society that is not the state

• There is something in law which seeks to protect something that is human, as opposed to the general will

• We might suggest the ways we could apply the conversation on a more international level

• Other constitutional regimes face similar difficulties and must face similar problems

• Not interested in today’s cases about what they have to say about today so much as the day after tomorrow

• Much of this will be relentlessly irrelevant, obviously wrong, or make arguments that seem ridiculous

• The goal is to present a series of questions that the current constitutional regime mostly ducks

• Illustration that constitutional doctrine does not face otherwise necessary questions or the doctrine itself will become irrelevant (as the 4th Amendment is already becoming)

• The idea that there are limitations on state power, requires clear understanding of how power is exercised

• Where is the line? How do we decide what’s in or out?

• We will have to put ourselves in the positions of decisionmakers or whose existence is unknown

• Footprints of state action (or ghost of Christmas future)

• The law of today will be way behind whenever we decide to pick up the task

• There are a few simple principles which can be defined, which allow us to assimilate data as it arrives

• “Pull beats push” is such a principle

• We are on the eve of a moment called “The End of Forgetting”

• Data is approaching immortality

• No longer possible to depend on oblivion, amnesty, or mere absence of mind

• Children learn that adults forget things, and we learn that forgetting is an important aspect of the relationship between power and the controlled

• We lived in a place where power fucked up

• We are entering a time where nothing is ever lost or forgotten

• Model for the nature of data in society: annual data acquisition of the Bank of America and the nuclear labs in Los Alamos

• BofA? : 10 to the 15th bits of data

• $100,000 of storage costs in 1995, now maybe $1,000

• Nuclear data: 10 to the 22nd bits

• That’s Wikipedia. Google gets that much every month

• Scale on which data can be held and the ease of replication, and the simplicity of storage, and the power of recall have multiplied themselves faster than human beings can comprehend the consequences of those actions

• The nature of the data is different → nuclear data was physical data, or BofA? was what people did with checks/cards

• Now: it’s everywhere we go, things we do, things we say, everything we put in the search box, everything we wish to know about, everything we have anxieties about

• We supplement the fight against influenza by collecting data about who searches for flu remedies

• We collect information from people themselves about whether they are feeling alright or are worried

• Second-order consequences are much more insidious and difficult to track

• Jury decisions? If you know the insides and outsides of every potential juror?

• Electoral campaigning? If every voter is available for inspection and cross-tabulation from the inside and out

• What do rules against coercion/retaliation (or other use of power to control individual’s choices), when the choices can be foreseen by others more accurately than they can be seen by the individual themselves?

• What has already changed?

• The rules which gives the state access to what the private actors know about us must be understood

• Litigation is increasingly transformed by electronic discovery

• Discovery that destruction of data is increasingly difficult (Always one more place to look or bit to find)

• The litigation planners/corporate managers’ lives are very difficult, but it’s really only the beginning

• Consequences of the durability of data and the simplicity of access

• End-to-end ideas are no longer true

• Nobody can tell data’s destination → movement of data from one context to another is an unpredictable, yet certain, situation

• Difficult to think about the contingency of data

• More difficult for us to see ourselves as we have been seen by others

• No matter how assiduous you are at recapture your file, or how much you try to track the tracking of you, you still don’t/can’t know enough

• You see yourself as a human being, not as a collection of data in the hands of others with the inferences that can be drawn from it

• Things that we didn’t know were predictability and the linkages are accessible as statistical regularities, but the information about us is no longer about us alone, but also people who are relevantly like us

• Even disclosure by those who are not us tells people something about us because of our similarities to other • No adequate current writing on the subject

• These problems are quite novel

• We began to notice things about air and water after the second world war → we began to notice that particulate emissions in the air related to asthma, mercury in the water, etc.

• We are not at the same understanding of data ecology and our freedoms/autonomy

• We are no longer possibly private, inward facing people

• We think we are in a free society, but the freedom we used to think was simply there is now contested

• Our politics is ludicrous in this respect

• Obama laying down in the failed filibuster against Telecoms was the first sign that we’re not going to change in the world of surveillance

• FISA court on surveillance said it was executive spying was constitutional

• He learned this in December, and everything that has happened since, and the statements of policy that have been proposed (i.e., no need to go back and look too hard at the prior violations of law) was made with the understanding that Obama would not have to alter this policy

• We will still live in pervasive surveillance → everything will be heard, nothing will be forgotten, and nothing will go away

• At some moment there will be more bits than there are particles in the universe, then it gets hard, but what limits on the storage of data do we have? At any given state, there are limitations

• What can be known is not everything, but after the end of forgetting, the question is not whether or not it can be known, but what is the priority assigned to knowing it

• Everything we say becomes a hostage to fortune at this point

• Some might say, “I’m not a terrorist, I’m not a child pornographer.”

• If you have a renegade D.A. or prosecutor (i.e., running for reelection) → you start prosecuting “child pornography” (i.e., teenagers taking naked pictures of themselves and texting to each other)

• They are technically making and distributing child porn

• They will probably only be sex offenders, but the data is immortal

• Some statutes made it unconstitutional to make obscene or blasphemous statements via telephone (everyone knew it was “unconstitutional,” but just let it fade away) → does that still apply?

• Maybe the very idea of freedom of speech has changed

• What was assertedly punished by the statute against profanity on the phone was that movement of air molecules, but nude pictures might do some other harm and do some harm to someone else • What has altered?

• Is there a name for the alterations that have happened?

• American constitutional law is a form of mythology based around facially spurious idea that those politicians like the founders were far-sighted politicians foreseeing social development and eager to express the principles that would guide the future

• Historically unsustainable and philosophically indefensible

• Depends upon idea that human nature is totally unpredictable

• The 18th century politicians in North America were hard-eyed realists → attempting to learn the lessons of the past and apply them to the present

• Their concerns were pressing, not ruminating behind a Rawlsian veil of ignorance

• They were in an unstable condition and operating under uncertainty about whether or not they would even exist with other empires sitting on the continent assuring them that their independence would be short-lived

• If the U.S. had the Mississippi river in foreign hands, and all navigation was solely under the guarantee of “today you can do it, tomorrow we might stop you”

• If everything happens by permission of someone else, you would appreciate their pressing problems

• No authority to really make a new government, only to strengthen the weaknesses of the Articles of Confederation → immediate concerns dominate their talk → most important things on their minds is completely different from what they wrote about

• Hamilton (proto-militarist) proposes to talk about things plainly, and then they proceed to assure that Hamilton will never get elected

• The constitution is not about future problems (us), but about old problems (English/roman problems) → what is politics, what it does, and what goes wrong

• Their understandings of despotism and overwhelming power (how government gets too strong) are largely arranged out of two stories: fall of the Roman Republic and English political experience in the 17th century

• These histories and narratives were the dominant/primary frames of reference

• This framed their motives, anxiety, and repertoire of possible solutions

• They have a very clear and simple schematic about what it means when government uses quasi-judicial form: The Star Chamber (named after the interior design → stars on the roof, i.e., night)

• Star Chamber is a kind of a fantasy/fairy tale, but an important one

• Particular meeting that tended to happen in the Star Chamber: consisted of all the judges and the chief political officers of the realm

• Very important group largely overlapping with the Council of the King

• It could be made administratively binding because there was no one left to disagree

• Had the capacity of executive control of the courts (ultimate coercive force)

• Star Chamber controlled “memory” → that which they said existed did, that which did not did not

• Primary purpose was to combat corruption (which created a force in local power) capable of over-awing the courts

• Large private armies were forming → purpose was to secure legal impunity of their members, and if in the conduct of business, someone was charged with some misbehavior, the result would be having 100 or so members of the army show up to “show solidarity” (i.e., coercion)

• There is money to bribe jurors or people to choose the jurors

• Problem of subduing all of the forms of private force which had been used to overawe the courts → Star Chamber was the primary weapon

• Can conduct prosecutorial activity directed at the obstruction of justice, sedition, and some independent regulatory jurisdictions (e.g., printing, licensure, distribution, etc.)

• Can be tried and disposed of in the Star Chamber, eliminating the possibility of the use of corruption to overawe or substantively modify the law

• Libel: printed defamation became part of the Star Chamber’s responsibility (dealt with it extensively)

• 16th Century plea rolls: explosion in the law of defamation in the royal courts → King’s Bench basically became about three things: whore, thief, leper

• Give and take of speech gave way to other concerns of honor and reputation

• They did try to dismiss or constrain a good part of this litigation

• In a system where the judges/clerks are basically paid by volume it’s not such a bad thing, but too much of a good thing is still a problem

• Became necessary to show that the words are actually meant (intended) in a defamatory sense → principle can be extended pretty far

• Required demonstration of defamatory meaning of the words became known as “innuendo”

• Other requirements: you must show specific harms (economic damage from the words spoken), not merely general harm to reputation (except with respect to: criminal conduct amounting to felony, chastity of women, performance in certain trades/professions where good name and reputation is inherent to success in the profession)

• These are all royal chamber rules, not applied to words written which is controlled by Star Chamber

• This is why there’s a difference between written and spoken libel

• The difference between transient statements and “permanent” statements can be traced through the 16th Century

• Cell phone pornography seems merely imprudent, but others would say that there’s no distinction between that and other pedophiles so people start to worry about the impurity of the bits

• Our rules are based on a distinction between what is permanent and what is transient → in a few years, we will have to face the differences between the two partially in respect to the requirement for the need to show special damages

• See Punch magazine's “Misleading Cases in the Common Law” a series of humorous and satirical pieces written by A.P. Herbert.

• Chicken v. Ham: plaintiff (owner of chain stores) received a gramophone record which contained disgruntled statements of the buyer against the owner. Gramophone record was replayed by a friend for family, no economic damages, but “permanent”…

• Trout: smoke signals (skywriting) → are they transient or written words?

• Unification of law of defamation/slander didn’t happen until 1966

• Where is the 1st Amendment? What is the state of the relationship between the government and the citizen?

• What can be known? What can be subpoenaed? How far can they go with it? Which dreams, expectations, plans?

• Criminal conspiracy was used to attack the anti-war protest movement

• Criminal conspiracy requires (1) illegal common plan or purpose, (2) knowledge of illegality by at least one party, (3) one overt act (not necessarily illegal) furthering the plan or common scheme

• Federal crime to cross state lines to create a riot was a very hot topic

• Use of federal grand juries to investigate and their secrecy/privacy (with political animus) led to a difficult and painful time in the judicial history of the U.S.

• All of this is chickenfeed compared to now

• The sense that it is possible to criminalize particular political opinions that were made for demonstration or even to obstruct government activity is nothing compared to this concern for “terrorism”

• The water has raised in temperature so gradually that we may not understand that we are being boiled

• Relationship between Google search and criminal conspiracy → plans, conjectures, postulations in those search boxes?

• The elements of conspiracy are pretty low → all it takes is a subpoena sent to Google (or any other intermediary) to access the contents of the box

• These are the people asking for more all the time

• Every day offering more “convenience, speed, simplicity of approach” in return for more of you of them to bargain and keep

• Disneyland started keeping your data in the 70s if you ever went → all about getting you to return, so they keep your data the first time you go

• The file is for knowing when to invite you (when you can be compelled to go again)

• They buy every piece of data they can ever purchase

• The investment in the data is trivial compared to the value of your third lifetime visit

• Surveillance is two generations deep

• When can you be persuaded to go for an anniversary, birthday, wedding, etc.

• What if Disney and the U.S. government switched places? Like if it wanted your firstborn? What then? Navyformoms website

• Government is always looking how to recruit more soldiers, so you have to look harder

• Isn’t even the fault of the guy who runs the database, etc.

• Maybe it matters how susceptible to influence you are

• One of the things that sustains the inegalitarian nature of our armed forces because there are some people who are easier to persuade

• Framers knew that standing armies were death to republics

• Made rules designed to prevent an imperial army from becoming a threat to the republic

• Hamilton is just the most obvious one about the need for an army that could go secure the Mississippi, but they all know it

• Hamilton is the first to go fight Shays’ Rebellion

• If you make a standing army in the republic, the army takes over and the republic is destroyed → they were thinking about how to begin answering the same question

• The worry about standing armies

• World of independent volunteers → armed forces must not be coerced into carrying guns

• Our world is one where the rich never have to carry a gun, so we send the poor to fight and protect the rich

• It would not please the founders to know that the government had ways to ensure that the families of the poor would enlist their children

• We convinced the poor to enlist for money

• “No quartering in times of peace” was used to prevent military coercion → civilians forced to accept rulers because military is in the house

• Small tradesman with a military man beckoning the boy of the house to come see the world was not a desirable outcome

• Right now we are enabling these things deeply

• We claim it’s national security. Is it?

• What does it mean to think about the methods of power, policing, armed force, citizens’ right to keep secrets, sense of autonomies?

• They are all somewhat in service of the idea that there is a boundary of personal autonomy in which the state cannot interfere without consent

• If we give away the concept of free consent, freely given, do we even have a democracy at all? If choice is constrained by artifice, technology and trick?

• Nobody bothers. They think they do, but they don’t.

• They chase the small stuff. They’re filing today’s cases. They’re dealing with the small part of the wedge.

-- RickSchwartz - 19 Jan 2009

I apologize that the bullet-tree/indentatation formatting didn't translate to the wiki so well. I'll have to learn how to do that better. If anyone has any pointers on that, I'd appreciate it.

-- RickSchwartz - 19 Jan 2009