Julie Cohen: Configuring the Networked Self

At the Berkman Center, we are hearing a preview of key elements of Prof. Julie Cohen‘s forthcoming book, Configuring the Networked Self.   Some hasty live-blog notes follow:

Prof. Cohen tells us that there are two disconnects that she starts with: 1) there are lots of invocations of “freedom” being floated around, but many of the results in the political and technical processes seem antithetical to the interests of the communities involved; and, 2) while the free culture debate is all about openness, it’s impossible (or at least difficult) to imagine how privacy claims may be contemplated in the context of all this openness.

What’s puzzling, to Cohen, about these disconnects that has led her to major substantive and methodological claims: we make these laws and policies about freedom within the frame of liberal political theory, invoking terms like autonomy and freedom and presumptions like rational choice as the dominant terms of the discourse.  We ought to be focusing instead on the experienced geography of the networked society, where people are living in cultures, living in ways that are mediated by technologies.  We don’t have very good tools to ask and answer those questions.  We’re led to start with the presumption that individuals are autonomous and separate from culture.  It’s difficult to say things about how more or less privacy will result in meaningful, significant consequences for how we experience our culture and how political discourse works from there.

On to the methodological question: lots of people are working on these questions in related fields, and we in legal scholarship often don’t pay enough attention to what they are learning (say, in cultural theory, STS, other fields described by legal scholars in pejorative terms of “post-modernist” and otherwise).  We need to understand what Cohen calls “situated embodied users” and how they experience information technologies in order to inform law and policy in this field better.  Cohen’s “normative prior”: We should promote law and policy that promote human flourishing (network neutrality, access to knowledge, access to culture as precursors for participation in public life).  But Cohen also tells us that she parts company with those who expound this theory where they seek to embed it in liberal political theory.  We should reconcile — or live with — tensions in legal and policy problems by looking to these “post-modern” fields and ask what they can tell us.  We should ask what kinds of guarantees the law ought to provide.

Where does this process lead us?  Think about Access to Knowledge, Cohen says: it’s nice, but it doesn’t get you as far as you need for human flourishing.  It doesn’t guarantee you rights of re-use in creative materials or rights of privacy, for instance.  There are further structural preconditions for human flourishing that we need to ensure.  Two in particular: 1) operational transparency: it’s not enough to know what is being collected about you, you need to know how it’s going to be used; and 2) semantic discontinuity: a vital structural element of the networked information economy: e.g., copyright, you need incompleteness in the law and policy regime that affords room for play.  In privacy, you need space left over for identity play, for engagement in unpredictable activity.  In architecture, seamless interoperability is all to the good in some ways, but not good for privacy, for instance.  Data about you would therefore move around and around and around without your knowing about it.  Human beings benefit, Cohen argues, from structural discontinuity.

This is going to be a fascinating and important book.  And I’m eager to think through how Cohen’s claims relate to JZ’s in Future of the Internet once I’ve read Cohen’s new work.

Solicitor General's Brief in Cablevision Case

The United States Solicitor General’s office has filed its brief (posted online here) in the long-running RS-DVR matter, popularly referred to as the “Cablevision” case. The brief is terrific. The United States takes the position that the Supreme Court should not review the case, which had been decided unanimously by the Second Circuit in favor of the cable companies. This case has significant copyright implications, as well as implications for the balance of power between cable providers and those who hold copyright interests in television and movie programming.

The Solicitor General takes the position that the case did not meet the traditional standard for the Supreme Court to grant cert and that the Second Circuit “reasonably and narrowly resolved the issues” before it. The reasoning in the brief is persuasive.

For more information: Several news outlets have the story. (The Reuters piece says that the SG “denied” the plaintiffs’ request for a hearing, which — at least in technical terms — overstates the matter a bit by implying decision-making authority in the SG. Though the Court asked for the SG’s opinion, the Court reserves the right to decide whether or not to hear the case. Practically speaking, though, that seems somewhat unlikely now, after the filing of this strong brief.) For previous coverage which touches on the procedural aspects of the case, see, e.g., an article by the LA Times’s David G Savage from January, 2009. Also, see the press release and summary page on the case published by Public Knowledge, which has worked on this matter; Gigi Sohn, the president, says she is pleased with the SG’s brief.

By way of disclosure: the United States Solicitor General and counsel of record in this matter, Elena Kagan, is my former boss when she was dean of Harvard Law School for six years prior to her appointment to the Obama Administration.

Brad Turcotte at HLS Class

Brad Turcotte, known on the web as BradSucks, came to our Web Difference class today. The topic for class is his model for making, sharing, and getting paid for his music. He seems to do everything BUT the traditional label approach. He gives it away directly, with a tip jar; he’s big on Magnatune; you can find him on CDBaby, Amazon, iTunes, and so forth. He does some performing, but he tells us prefers to stay home and work on his computer. His view is that copyright is an obstacle, not an enabler, to making his music and his living.

The coolest thing he said: William Gibson blogged about how the tonality of his character Milgrim, in the totally wonderful new book Spook Country, is inspired by Brad’s music.

He performed last night in a lecture hall (not good sound; sorry, Brad!). Tonight he’s at the Middle East in Central Square, probably around 11:15 p.m. Amazing guy and great music; you should see him.

Five Years of Keeping Culture Free

Hip-hip-hooray for Creative Commons on its fifth birthday today! Thanks to Larry, Joichi, and all the heroes of a free culture who have worked so hard on CC, around the world, for the past half-decade. If you want to help, there’s still time to pitch in: CC is $470,000 of the way toward $500,000 in individual contributions. Click here to be part of that last $30,000.

Eszter Hargittai on Digital Na(t)ives

We have the great pleasure today at the Berkman Center of hearing from Eszter Hargittai, a prof at Northwestern, on her large-scale research project on how 18 / 19-year-olds use digital technologies. She’s also worked on problems related to what she calls the “second-level digital divide” over the past decade or so. She surveyed over 1000 students at the UIC, one of the most diverse research universities.

A set of important take-aways: she’s found a correlation between gender and the likelihood of creating and sharing digital content (women were less likely to share content online that they’ve created than men). But it turns out that skill level is actually the relevant factor, not gender: if you correct for skill-level, the gender difference goes away. She is also trying to figure out what these gaps mean in terms of opportunities for life chances.

Her research hones in on the fact that what matters are skill differences, not just technology access differences, when it comes to digital inequality. We need to provide training and education for kids in addition to access to the network. These findings — good news for her — are consistent with Eszter’s extensive body of work to date. And she’s plainly right. (This is much of what Urs Gasser and I are arguing in our book, Born Digital; we have to figure out how to say it half as elegantly as Eszter does.)

Eszter has an article coming out very soon, in a volume co-edited by danah boyd and Nicole Ellison, which makes a related set of claims. Her data inform the question of who uses social-networking sites (SNS). Women, she finds, are more likely to use SNSes than men (other than in the context of Xanga, where the numbers are reversed). People of with parents with lower academic backgrounds (which apparently correlates to lower social-economic status, (SES), backgrounds) are more likely to be MySpace users, and those with parents with higher educational backgrounds are more likely to use Facebook. (These data lead to conclusions much like what danah boyd claimed recently, and which kicked up a bit of a storm. See the 297 comments on danah’s blog.)

If you missed Eszter’s talk, it’s worth catching it online at MediaBerkman.

(Separately: she’s also got thoughtful comments on her blog about our pending Cookie Crumbles video contest.)