Julie Cohen – Internet policy and human flourishing

Professor Julie Cohen of Georgetown Law School is visiting at Harvard Law this year and working on a book, “Configuring the Network Self”. Speaking at Berkman today, she explains that she’s had two motivations to undertake this work – an understanding of information technology possibility framed through the idea of the “structural conditions of human flourishing”. One is a sense that discourse about IT policy (in the US – she distinguishes US from European disrouce) tends to use “grandiose language” about poicy choices for free speech and free markets, but generally seem to create circumstances that don’t appear especially free. Users face complex rules about content they can and can’t use, but there are very few rules that govern how users can be watched, monitored and aggregated. There’s a disconnect between the copyright debate – where much of the discourse is unquestioningly in favor of openness – and the privacy debate. We need a discourse that makes a space for privacy in the environment of openness.

Second, she notes that most (US) discourse comes from liberal political theory, a space where there’s a great deal of discussion of autonomy and freedom. This discourse comes with an assuption of rational choice, the idea of disembodied individuals at play in the realm of the virtual, exercising autonomous choice. “This is not a worldview that has much relation to reality, in my opinion.”

Cohen wants to explore ideas of internet policy based on the “experienced geography of the information society”. This means accepting that people are real, embodied, located in cultures and context, and experiencing the network mediated by platforms and devices. The framework we’ve inherited from liberal theory doesn’t give us very good tools to examine these questions – fortunately, there’s lots of folks thinking about embodied use, just not in the legal field. People in anthropology, sociology, science and technology studies and information studies look closely at these questions… and they tend to be dismissed, pejoratively, as “postmodernists” by legal thinkers. Cohen’s goal is to unpack this set of literatures and ask how the information society works in terms of situated, embodied users, and then ask how this understanding might then inform our law and policy.

She traces her narrative framework to Amartya Sen and Martha Nussbaum’s discourse about “capabilities for human flourishing”. She wants to articulate a regime of law and policy for information technology spaces that seeks to let humans flourish. Acknowledging that there’s a danger of turning anything into a requirement for flourishing, she suggests we start by looking at these literatures, at the relationships between self and culture, self and community, and identify what’s really necessary for human flourishing. “Selves are constituted by culture -there is a mutually constituting relationship between information technologies and our embodied perception” of the world through them. These tools reconfigure our acess to the world, change the nature of geography as we experience it.

Cohen wants to root thinking about internet policy in the concept of “everyday practice”, which she describes as an “anti-paradigm”, a useful tool for describing what people actually do, rather than what we ideally believe they do. The dominant paradigm in legal literature, she tells us, is to evaluate a technology in terms of its effects on freedom of speech or a user’s ability to make free choices within a market. This paradigm tends to lead to reductive models of human behavior – do humans simply make rational choices in markets? Are we always motivated by romantic concepts of dissent? Everyday practice describes the welter of other motives that accompany our interactions with information technologies.

When thinkers critique copyright in intellectual property literature, they often talk about the concept of “play”, the idea that people should have freedom to play with cultural resources. The value of play is stated in terms of its links to creativity and invention. Cohen wants to broaden the discourse around play to encompass “the play of circumstances”. She theorizes that creativity blossoms not because an individual decides to play, but because life puts random incidents in your path. Policy needs to foster this sense of play – not play by individuals, but play in terms of random circumstance.

Cohen cautions the limitations of the Access to Knowledge movement. She acknowledges the importance of A2K, but suggests that it’s insufficient to provide a base for human flourishing. The A2K paradigm, she arges, doesn’t include rights to reuse the materials you have access to. It doesn’t guarantee a user’s rights of privacy – she worries that most privacy frameorks tend to put forward a vision in which more openness is always best.

Future policy strategies need to consider issues of operational transparency. It’s insufficient to build policy based solely on what information about a user is going to be collected. We need to know how that information is going to be used. “It’s not enough to offer a choice between Google and… whatever else there is. Between iPhone and Blackberry. We need to be given sufficient information to know what’s being offered as a possibility to us and what’s being closed off.”

Cohen hopes that information technology policy will provide open spaces through “formal incompleteness”. It’s a mistake that we need to invoke a catch-all defense like fair use in the copyright space – we need space to play with technologies, to repurpose and remix media without bumping into creator’s rights. Within rules about aggregating and monitoring the use of online spaces, we need to ensure there’s space for users to play with identities. With this in mind, Cohen worries that an architectural presumption – that everything will be better if we have seamless interoperability between platforms – is limiting our choices. In a seamless universe, our data moves around with no one to stop it. We may want some friction in our platforms as well as whitespace in which we can play and experiment.

(I caught only part of the question and answer exchange.)

Q: If “churchlady43” is also “pornstar565” and “terrorist 12”, we could see a security theater response to online speech, an attempt to squeeze out anonymity and make it harder for individuals to engage in identity play. An integrated online environment means that every environment is a workplace environment because someone might connect my unpopular opinions in one identity to my professional one. Will this lead to a revival of McCarthyism?
A: A great comment. There’s a tendency to say that if we restrict the flow of information, we’ll move down the slippery slope to Chinese censorship. That’s an oversimplication – we need to consider times we might restrict information flow to maintain the capabilities of these new spaces.

Q: (Charlie Nesson) I perked up at the mention of copyright and play, the idea that a playful person needs a defense besides fair use. How would we get there?
A: We should look back to the copyright law of 1909, a law that’s generally reviled by publishers. Under the 1909 law, there were narrowly defined categories for copyright – you couldn’t get the rights to a work unless it fit within the categories. Rights were far more limited. It’s possible to build a copyright system that gives significant rights to copyright holders and reserves rights for users.

1909 copyright law reviled by publihers – categories, couldn’t get the rights unless you fell without the categories. And rights were much more limited.
define rights to reproduction, adaptation which gives significant rights to copyright owners, reserves rights to users

Q: (Christian Sandvig). A book from a decade past, called “The Internet: An Ethnographic Approach”, makes the argument that the Internet is culturally embodied and located. In short, the authors argue that if you’re in Trinidad, the net is one thing – if you’re not, it’s another thing. The authors rushed the book into print because they thought they were about to witness a trend of scholarship that saw the internet as culturally embodied. That trend hasn’t caught on – why not?

A: Our discourse about cultural embeddedness tends to not go further than the digital divide. If your connectivity is limited, your knowledge is limited, and we want to help you overcome those limitations. That’s okay – it would be nice to have a comprehensive broadband policy designed to give access to everyone. But the assumption that there’s a uniform digital ethos, a universal competency to strive for is troublesome.

Q: (Salil Vadhan): Could you elaborate on the implication that interoperability implies a desire for information to flow freely between systems – those seem like two separate things.
A: We probably shouldn’t decree by fiat a set of randomized incompatibilities between systems. But there’s a value to not fixing all these incompatibilties. The challenge is to design a framework that encourages and rewards gaps between systems. But everything is driving against it… it might just be quixotic to think we can avoid this seamless integration.

Q: (David Weinberger) That the Internet is a different thing from Trinidad and from Cambridge seems incontestible. That said, as long as the internet is present in any recognizable form, in Trinidad, Beijing or Cambridge, you’ll have the sense that ideas can be linked, that there’s more information than you could ever consume, that much of that information is from people like you, and that there’s a lot of disagreement. Are these characteristics really universal, embodied within the technology, or is this culturally embodied? Is there something that can be said about the internet cross-culturally?
A: It depends on your level of abstraction. Technodeterminism comes into play if you think there’s only one set of rules that could apply within a digital space. It’s not at all obvious that there’s a single way the internet could (or does) work.

When we start talking about aspirations for how the internet should work, liberalism makes its way back into the project. We don’t want to throw away all the aspirations – but aspirations are a crappy descriptive tool. Critical subjectivity is an aspiration of liberalism, but it’s something we’re not very good at getting to.

Q: (Fernando Bermejo): Scholars of linguistics have been accused of creating an object – language – at the expense of speakers. Similar accusations can be raised about cyberlaw, internet studies and the spatial metaphor for cyberspace.
A: I wrote a paper about this, and agree that there’s a tendency to reify, separate cyberspace, then project our fantasies of social ordering on it. I prefer “network space”, a real space created by networks, defined by what people can do. Network spaces include the realization that Paris and New York may now be closer than New York and Williamsburg, VA, because there’s a regular flow of people from New York to Paris, a networked connection that reshapes realworld geography.

Please see David Weinberger’s excellent notes from the talk here.