John,

As you know, my blog is in hibernation. Would you mind posting the following response to Andy Orlowski’s latest for the record?

I hadn’t thought any response would be necessary, but the ordinarily sensible (even if I disagree with its politics) Capitol Confidential seems to have been misled by Orlowski’s piece. Perhaps there are others. So, …

FOR THE RECORD, II.

A reader of Andrew Orlowski’s article published at The Register might be forgiven for taking from that piece the following scandalous story:

That the Berkman Center and a “for profit” entity on whose board I sit, iCommons, “registered in London,” has taken a large amount of money from a criminal organization — gamblers, or at least, people who set up an online poker site; that with those resources, Berkman tempted me to Harvard (as Orlowski puts it, “half of Berkman’s first-year budget of $5.4m went on procuring and supporting Lessig”). Berkman then used that money to help start Creative Commons. And that while we can’t really know what other influence these illegal gifts have procured, the suggestion is they certainly must have done something. It has at least driven Lessig to serve on the board of an entity that promotes poker — the GPSTS. Beyond that, we can’t say, but there must be more. Why else would the money have been given? “Perhaps it’s naive,” as Orlowski sonorously intoned, “to expect academics to uphold the values they preach.” So where else then is Lessig acting against the values he preaches?

Something close to this reading was what Capitol Confidential got from Orlowski’s piece. Here’s CC’s account:

As described by Andrew Orlowski at The Register recently, Professor Lessig (a professor of ethics, no less!) seems to have made a killing advocating on behalf of the gambling industry. Orlowski’s remarkably detailed reporting shows how Lessig’s for-profit iCommons attracted more than a million dollars in contributions from “newly-formed and secretive off-shore trusts” about three years ago, shortly after a new U.S. law took effect that curtailed online gambling. As for current funders of Lessig’s group, that’s anyone’s guess since Lessig’s London-based nonprofit Creative Commons does not disclose a list of its donors.

So for the record:

First, the Berkman Center has never taken any money from either of the two entities Orlowski identified. Zero.

Second, even if it had, there is no chance that money could have been used to recruit me to the Berkman Center. I came to the Berkman Center in 1997 — long before DeLeon and Dikshit made their money. I returned to Harvard last year, but to the Edmond J. Safra Foundation Center for Ethics, not to the Berkman Center.

Third, even if the money had been given to recruit me retrospectively (the way extending copyrights is said to promote creativity) and even if it had come from the allegedly tainted sources, Berkman did not “procure and support” me by spending $2.7m. Berkman used that money to fund an endowed chair — the Berkman Professorship — a chair which I held for a year or so while at Harvard, a chair which Zittrain held after that till he went to Oxford, and a chair that Yochai Benkler now holds. An endowed chair in law schools simply refers to the bucket from which a salary is paid. My salary (then and now) is obviously an order of magnitude lower than $2.7m, and was not affected in the slightest by my holding that chair.

Fourth, Berkman did not fund the launch of Creative Commons. Some of its founders were associated with Berkman when CC launched, and an initial meeting was held at Berkman. But that was the only “help” CC received from Berkman.

Fifth, Creative Commons certainly does publish the list of its contributors.

Sixth, I am not currently, nor have I ever been a “board member” of GPSTS. I don’t even know whether GPSTS has board members, but the website does list me as an “adviser.” I am an unpaid adviser to the founder of that entity, Charlie Nesson, in this and in any other area that he would like advice on. I believe the total amount of “advice” I have offered Charlie about GPSTS is that it find a better name.

Seventh, and most critically, iCommons.org is not a “for profit” entity. It is a not-for-profit entity. And it is not simply “registered in London.” It is a British Charity. Its first Chairman was Japanese. Its second Chairman was Brazilian. Its first Executive Director was British. Its second was South African. The majority of the board (I believe, but have not checked) has always been non-American. It is not subject to the jurisdiction of US law, except to the extent that it engages in activities here in the US. Since being launched as a UK charity, iCommons has never held any event in the United States.

I say all that to throw into relief the central confusion at the core of Orlowski’s essay. The nub of his charge against me is that I should have engineered the return of contributions to the iCommons charity because one of the two entities that contributed to it has pled guilty to violating US law.

Ok, but remember: iCommons is a UK entity. Whether or not Dikshit violated US law, neither he nor the founders of IETSI have been charged with violating UK law. I know Orlowski has US envy, but I should think THE REGISTER would recognize that the UK is neither a state nor a colony of the United States. And so why an alleged violation of US law should obligate a UK charity to return a charitable contribution is completely beyond me. If BP had advertised on The Register’s site, would The Register be obligated to return the advertising fee?

The most troubling bit of Orlowski’s piece, however, was the part he didn’t include. He ends his piece with the sanctimonious “[p]erhaps it’s naive to expect academics to uphold the values they preach.”

One might expect then that if he was charging me with not upholding the values I preach, he would at least mention what those values are. In my email to him, I had referred him to my “disclosure which states my “values.” Orlowski omitted that link in his essay. As that disclosure makes clear, my “values” are that I will not “promote as policy” positions for people who pay me, or who give a significant amount to a non-profit for which I have fundraising obligations.

Have I lived up to those values?

First, neither IETSI nor Dikshit ever paid me anything. Zero.

But second, the gift to iCommons plainly would trigger the obligation that I not “promote as policy a position” in the commercial interests of IETSI or Dikshit. That’s because I had a fundraising obligation to iCommons, and IETSI and Dikshit helped relieve that obligation through their gifts.

Orlowski nonetheless suggests that I violated this policy. But as I advised him by email (another bit of my email that he omitted from his essay), I had explicitly told the founders of IETSI and Mr. Dikshit before they gave their gifts that their funding iCommons would mean that I would not become involved in any policy debate that would advance their commercial interests. And indeed, I have not. I have never testified publicly, or promoted privately, any change in policy with respect to online gambling or poker. Instead, my behavior with respect to both of these contributors is precisely consistent with “the values [I] preach.”

Orlowski knew this all this, yet he wrote an essay that states precisely the opposite.

I don’t know what explains his fabrication. It may simply be the product of an extraordinarily sloppy mind. But the pattern here may suggest something more.

This piece is just the latest in a series of sloppiness or slander by Orlowski. The first was published almost a decade ago. In that piece, Orlowski apparently fabricated a quote he had attributed to my assistant. When she came to me in tears, I asked him to correct it. He refused, but invited me to dinner instead. I told him I was not interested in dinner with him; I simply wanted him to correct his error. He didn’t. Three years ago, he reported on a speech I gave at CISAC. That piece too was filled with apparently fabricated quotes, attributed to me. When I posted a blog entry that included snippets from a recording of the speech, demonstrating the fabrications, The Register cleaned up the quotes, but defended the piece by claiming — you can’t make this up — that Orlowski had invited me to dinner the night before the talk.

The good news about this latest is that at least this slander came with no invitation to dinner. For that I am grateful.

(In case there’s any confusion: The foregoing post was written by Lawrence Lessig. -JP)

A new group of (utterly wonderful) interns has arrived at the Berkman Center, asking lots of questions about what the place is about.  I met with a big group of them, working on a few projects I’m involved with, this afternoon.  There’s also a reporter who has been working on a story about the Center, who has asked a lot of basic questions about what we do and how we fund our work.  I thought I’d set out some basic facts about the Berkman Center here in a blog post, in case anyone’s interested.

The Berkman Center for Internet & Society was founded in the 1997-1998 academic year at Harvard Law School by Prof. Charles Nesson and co-founder Prof. Jonathan Zittrain.  Their vision was complemented by, and supported by, a generous gift from the Berkman family.  This gift provided both funding for a chair at Harvard Law School for a professor (which has been held by Lawrence Lessig, Jonathan Zittrain, and presently by Yochai Benkler) and for the seed funding for the Berkman Center for Internet & Society at Harvard Law School.  The Center had a few students back then, now-famous Internet scholar Wendy Seltzer and lawyer Alex Macgillivray.  Wendy refers often to the early days of the Berkman Center as “smart people in a hallway.”  It was not glamorous.  It was a hallway in Pound Hall at HLS where most of us students (I was one, in the late nineties as well) toiled at workstations on JZ’s and Charlie’s inventive projects.  In the early days, the Center’s budget was up to and occasionally a bit over $1 million per year.  It had a small professional staff and a deeply devoted, and growing, group of students engaged in it.  That was the era when I fell in love with the subject and the place.  It felt serious, important, and engaged in an exploding topic.

The Center has grown since then in many respects, but it retains much of its original flavor — much of its original start-up feel.  We are, twelve or thirteen years later, no longer in a hallway, but now in slightly larger digs, the second floor of a yellow, wood-frame house on the north edge of the HLS campus.  It’s about 2,300 square feet, with some offices housing four, five, or six people at a time.  During intern season, there are often a dozen or more students camped in the conference room and/or the kitchen.  We still feed the crew a lot of pizza and sandwiches: every Tuesday, for our lunch series, at a minimum, and often more frequently than that when we have other guests.  That’s part of the charm: students, staff, fellows, and faculty all come to the Center for the ideas, the camaraderie, the hard work, and occasionally the refreshments.  Myles Berkman, who has been our biggest supporter, described his vision for the Center as a “water-cooler” around which interested students and researchers might gather to work on the most important issues of our times.  We’ve taken that charge seriously.

The growth of the Center has changed a few things.  There are many more paid staff, which is terrific; our reach is increased as a result.  It was once a few staff; it is today more like 30.  The fellows program — in many respects the heart and soul of the institution — has grown from a few to as many as 50 in the newly-announced class for the coming year.  The faculty has grown.  Our clinic has grown in size and sophistication, and is led by Prof. Phil Malone and his extraordinary group of lawyers and teachers.  As many as 150 students grace us with their presence and involvement each year.  Our reach, today, is more international than ever, a charge led by our quite brilliant and wonderful executive director, Urs Gasser, who was formerly a law professor at the University of St. Gallen in Switzerland.

Our funding, too, has grown and diversified.  Initially, it was pretty much just the Berkman family.  Recently, the Center’s budget has grown to between $4 million and $5 million per year.  The funders come from a broad range, including individuals, foundations, governments, and corporations.  We disclose all donors on a web page which the staff keeps up-to-date.  We don’t take any sponsored research.  But if we allocate an unrestricted gift from a corporation to our work on a given project or event, then we disclose this gift as associated with a project (see the ISTTF page, or our Interop work, or our Digital Youth work, each of which have benefited from funds from various supporters).

Some things have not changed as the Center has grown, which is deeply important.  The Center is still a place where people who work there are deeply devoted to a common mission — a mission that has not changed since our inception, dreamed up by JZ and Charlie and just as compelling today as it was when the Center was founded.  It’s a place where understanding the truth is the primary object, whether through teaching, research, or exploration of cyberspace.  We work hard and enjoy one another’s company, challenging ideas, and devotion to our shared inquiries.  It is a serious, fun, compelling place to work, and I’m grateful every day that I’m associated with it.

Interns, I hope you have a great summer — and may you have as hard a time leaving it as I have.

As I’ve been gearing up to write a new book, I’ve been thinking about how to do it better this time — continuous improvement and all that.  Some fairly obvious observations are on my mind: stronger argument, a more compelling narrative, less repetitive, probably shorter, and one big-picture idea,* below the rest of the post.

With these thoughts of self-improvement in mind, I’ve turned to the pros to see what they have to say, and found a wonder of a book.  It’s by former Basic Books editorial director-turned-agent, Susan Rabiner (you can follow her on Twitter, as I do; perhaps that will encourage her to Tweet more if we do!).  I heard Ms. Rabiner speak to a group of faculty on my campus; her talk was excellent, as is her book: Thinking Like Your Editor: How to Write Great Serious Non-Fiction — and Get it Published.  Rabiner’s book even got the two thumbs up from Lara Heimert, the editor of Urs’ and my book, Born Digital, and our next project.  (We know from first-hand experience just how demanding, and amazing, Lara is!  Lara does not recommend books lightly; she said that she routinely gives it to her authors.  Hmm…  I wonder why we had to come across it on our own?  Maybe…)

There are lots of reasons why I hugely liked this book, most of which come down to modeling.  Rabiner has written a book that must itself accomplish all the things she’s telling the writer to do, which is no mean feat.  She tells us, for instance, to make argument and narrative work together — and, lo and behold, she does just that in her own text.  It’s a few hundred pages, yet it reads (almost) like a novel; I read it in one sitting.  The text is clean and flows from idea to idea in a way that pulled me along.  All the while, the topic is about thinking up a book project, writing a proposal, what to expect from an agent/editor/marketing department of your publisher, the distinction between a trade book and a university press project, and so forth.  I can see why it is recommended reading for anyone writing serious non-fiction.

Rabiner notes that, when someone is standing in a bookstore with your book in her hands, you have to convince her to devote 5 to 10 hours with you.  This great framing helped me think about my next project.  But it also became clear to me: Rabiner succeeded at her own assignment: 5 hours with her book was well-spent.

(*And at the same time, I have in mind a big-picture thought, encapsulated well by Cody Brown in TechCrunch, about thinking in terms of “apps” as well as “books”, in the traditional sense.  I think this next one will look more like “book” than “app,” but the form factor and interactivity components to any sustained argument strike me as important.  With Born Digital, Urs Gasser and I created four “books”: 1) the traditional bound one/Kindle version, which I count together as one, since I see little difference between the two from a user experience, much as Cody Brown notes in her TechCrunch post; 2) a blog; 3) a wiki; and 4) one comprised of student-generated videos, still a work in progress.  This is a topic for another day, but much on my mind.)

Prof. Richard Danner of Duke Law School is giving a truly inspiring lecture today at Harvard about libraries and legal information.  He has grounded his talk in a lecture by Morris Cohen, a former Harvard Law School library director and professor (later, he had both jobs at Yale as well), about the “multiplicity” of legal sources at the end of the 19th century.  His talk is a fascinating tour of the intellectual history related to legal information and law librarianship, picking up on the words of thinkers from Joseph Story (a legal giant of the 19th century, credited with a key “founding” role for the Harvard Law School) to Robert Berring, Ethan Katsh, James Donovan, and Michael Carroll of the present day.

Danner makes a fresh argument.  In the 1980s, legal information became widely accessible in digital formats for students, faculty, and practitioners.  In the 1990s, the Internet made the same digital sources available broadly to the public.  There’s a new multiplicity of sources, Danner argues, many of which fall outside of the usual vetting and publishing process.  Berring began, as of 2000, to call for a new Blackstone, someone to reconceptualize the structure of legal information.  Danner recalls a report that calls for law librarians to work to provide legal information not just to our students and faculty and practitioners we directly serve, but more broadly, to the public.  Computer scientists and law librarians should work together to solve the problems of getting legal information to these joint.

One of the key jobs of those who think about legal information is to determine the core function (or the source of legitimacy) of law libraries.  The core function is service to a community, not so much collection development, Danner argues.  But at the same time, it’s important to think again, Danner argues, about the nature of the services that law libraries provide.  There’s no reason to be complacent about the role of librarians in the future.  Digital information is somewhat different than printed information, and the differences matter, Danner contends.  These differences can help to understand the job of the law librarian on behalf of the communities they serve.  Librarians provide significant value, but libraries are no longer gateways.

Digital scholarship is by nature collaborative, Danner argues (citing Stanley Katz).  Collaborative and interdisciplinary scholarship is growing in law as it is in other fields.  Law professors might begin to think of law librarians as collaborators, much as they collaborate with fellow law professors.  We are, Danner argues, a service profession, and faculty members think of librarians as service professionals — not so much as collaborators.  Interdisciplinary research might provide a way forward for librarians to function more like collaborators (listed as a co-author) than like service providers (thanked in a footnote).  Law librarians themselves have an area of study, just like Constitutional law or intellectual property are areas of study in the law, Danner argues.  So what is our discipline, Danner wonders?  Information science can provide the theoretical base for the practice of law librarianship, giving rise to a discipline of legal information sciences.

Librarians should not be passive disseminators of legal information.  We should be tool-builders, and to add value to the information that we protect and to which we provide access.  We need to be partners in new fields like empirical legal research.  We need deep, technical proficiency ourselves, and need to use it to build our own role in this new information environment, Danner argues.

And open access is a key part of the recreating of a legal information environment, Danner contends, especially for secondary sources of law.  The primary sources of law, too, are increasingly available through the free access to law movement — and, we hope, through Carl Malamud’s law.gov efforts; Tom Bruce’s LII at Cornell; and so forth.  A commitment to open access should be a responsibility of those of us involved in legal scholarship, Danner argues.  Open access repositories expose scholarship to broader audiences — worldwide audiences — and expanding the communities that we serve.  Through open access, we encourage a freer flow of information beyond the wealthy and privileged cloisters of academia in the US and other rich countries in important ways, and vice-versa.  Berring envisioned a complex information environment, in which users have more support to make their way through it; Danner’s view is that libraries can meet this need.  Librarians need to write more code, to collaborate with those in related fields, to make legal information –both primary and secondary sources — more broadly accessible and useful, to make connections between primary and secondary sources using social media and otherwise, and to do so with a global perspective.  (Bravo!)

I’m just thrilled that Richard Danner has agreed to give a major lecture on the Harvard campus about open access on April 29, 2010.  As a rookie law library director, I’ve asked many people in the profession about the leaders in the field, and roads inevitably lead to Danner, among a small handful of others consistently mentioned (in my totally-non-scientific survey).  Danner is the Senior Associate Dean for Information Services and Archibald C. and Frances Fulk Rufty Research Professor Of Law at Duke Law School.  His talk will be entitled, “Taming Multiplicity in the Post-Print Era: Law Librarians, Legal Scholarship, and Access to the Law.”  It will take place on Thursday, April 29th, from 12:30-1:30pm, Lamont Forum Room, in Lamont Library on the Harvard College campus.  RSVP via this link; we expect a good crowd, so please do let us know you’ll be there.   The lecture is sponsored by the Harvard Law School Library, the Office for Scholarly Communication, and the Berkman Center for Internet & Society at Harvard University, our partners in the open access movement on campus.  (Thanks especially to Michelle Pearse, Librarian for Open Access at HLS, for organizing this event.)

Professor Richard Danner has been at the forefront of the open access to legal scholarship movement for many years and has also recently written about the role of academic law librarians in supporting faculty scholarship.  For an article out in this month’s edition of the Journal of Law & Education (April 2010), on the role of the academic law librarian, click here.  See also the Durham Statement, drafted during a meeting in Prof. Danner’s conference room at Duke and now proudly posted on the Berkman Center’s web site; or listen to Prof. Richard Leiter‘s podcast about it, featuring Prof. Danner.

At the Cambridge City Hall, the School Committee is meeting about its budget for the coming year.  There’s not a seat to be had in the Sullivan Chamber.  People are clustered in the antechamber, watching the proceedings on a TV monitor in the hallway.  The School Committee is expected to approve the proposed $137.5 million budget (various relevant links from here).  But it’s a tricky business: the new superintendent has to come up with $3.7 million in cuts to make up for a budget deficit.  And there are issues that are controversial.  The biggest one is a proposed administrative restructuring.

For instance, two representatives of the Cambridge Teachers Association raised concerns about the administrative restructuring proposals built into the budget.  The arguments are familiar: 1) there’s concern that faculty will be giving up decision-making authority to administrators (a message heard often down the street at Harvard in various contexts); 2) that the restructuring process is not sufficiently transparent; 3) that the input requested is not meaningful, too little, and too late; and 4) that current Cambridge Public Schools employees be considered before outsiders for any attractive new mid-level jobs created as part of the restructuring.  School Committee members, too, raised concerns about not knowing all the details about where the cuts will fall exactly as part of the administrative restructuring before voting in favor of the budget overall.  The echoes heard in this process to restructurings elsewhere in academic settings are remarkably clear.

The best part, though, is the public comments from students in the school district.  One after another, students from the Cambridge public schools are encouraging the school committee to invest more in the school system’s environmental programs.  One after another, eighth graders from the King Open school are making serious, compelling arguments to expand a pilot composting program from one school across the system and to increase purchasing of biodegradable trays.  The students earn — and get — huge applause for their efforts.  It will be interesting to see what kind of a lesson the School Committee gives these students in terms of rewarding their activism in a period of big budget deficits.

I’m looking forward to a day of watching the fallout from the Google-China-HK announcement yesterday. I give Google an enormous amount of credit for the approach that they are taking; it’s a worthy effort to meet what they consider their human rights obligations while seeking to engage in the China market, both of which are laudable. I’ll be surprised, though, if the Chinese government doesn’t decide fairly promptly to block the redirects from Google.cn to the uncensored Hong Kong site, though.  This chess-game also demonstrates the importance of (and challenges inherent in) the work of the Global Network Initiative, of which Google is a member, along with Microsoft and Yahoo!

(For more info: See generally the OpenNet Initiative site, blog, research papers, and so forth online.  There’s also a chapter on this issue, written by our colleague Colin Maclay, in the forthcoming OpenNet Initiative book called Access Controlled, due out within the month from MIT Press, as there is in our previous book, Access Denied, available online.  Here’s a piece in which I make a cameo on CNN on Google and China, one of many video-clips on this topic.  And Rebecca MacKinnon’s blog is always informative on these topics.)

For Christmas, my good friend and mentor John DeVillars gave me a copy of “The Man Who Loved Books Too Much” by Allison Hoover Bartlett.  (There were several messages embedded in the giving of this gift, I’m clear on that much.)  I’ve been eager to read it, but it was fairly far down on the stack of books on my bedside table until last night.  It was worth the wait: a lot of fun and readable in a few nights, if you’re willing to stay up late.  It’s apparently non-fiction, but it reads almost like a mystery novel — about Bibliomania.

Bartlett tells the story of John Charles Gilkey, who steals a great many rare books, and the rare book dealer (Ken Sanders) who helps to track him down and warn his fellow dealers of Gilkey’s misdeeds.  Bartlett clearly spent an enormous amount of time reading about book collectors, dealers, and thieves and talked to a good many of them, too.  She tells the story of Gilkey, Sanders et al. in a manner that’s at once serious and reflective, and with a welcome sense of humor throughout.  Bartlett gets deeply into the topic herself through the research and writing process, which comes through clearly in the text in an appealing, human way.  She refers in the notes on p. 263 to a state of “research rapture,” which resonated for me.  For anyone who loves books and bookstores (or libraries, for that matter, which make a cameo appearance near the end, especially), it’s an interesting, fun (and quick) read.

For those for whom the book is not enough on this topic: I also enjoyed the Library Thing interview with the author.

Prof. Joel Reidenberg (Fordham Law; director of the Center on Law and Information Policy) starts out a luncheon talk at the Berkman Center’s Law Lab with a provocative opening theme: Transparency challenges the very existence of the Rule of Law. Some hasty/live-blogged notes follow:

As a practical matter, in the cloud era, we’ve lost the practical obscurity of information about all of us.  What used to exist about us, but in private/not-that-accessible form, is now accessible and associate-able with an individual.  We now have transparent citizens, Reidenberg contends.

How does this challenge the rule of law, he wonders?  The data that are included in the TIA and other state databases come from third-parties, outside the warrant process (the third-party data problem).  The state doesn’t have to spend the same amount of time or money to gather a great deal of information about each of us.  Fusion centers are another prime example of this phenomenon, Reidenberg argues.  Fusion centers use data from private sector parties to determine who should be a suspect, as opposed to the historical approaches to determining suspects and then gathering data.  The state does not have to adhere as faithfully to the rule of law in their law enforcement practices.

We have a transparency challenge, says Reidenberg.  Enhanced cryptography can allow people to carry out acts anonymously, he points out; ditto for the Cohen case in New York with Blogger, Juicy Campus, and so forth.  People are hiding behind anonymity to carry out wrong-doing.  As the public perceives more and more surveillance, wrong-doers will use more robust tools to maintain anonymity — making it harder for the state to catch the real bad guys and to protect the rule of law among the citizenry broadly.

There’s a transparency challenge to the rule of law, as well, Reidenberg argues.  The dossier on Justice Scalia that Prof. Reidenberg’s class pulled together.  Secondary use is a major issue when it comes to public data.  Students could easily pull together a dossier on a major figure by using the transparency that government insists on with respect to information about each of us.  A related example: social networking and judges, in the case of a Staten Island-based judge who is friends with those who appear before him.  (Is there a difference between LinkedIn and Facebook?  And/or: do we really want our judges “unplugged” if we tell them they cannot be friends with anyone online?  What about the jury pool and public friendship networks?  Lawyers googling potential jurors outside of voir dire?  Puts me in mind of Prof. Charles Nesson’s American jury seminar this semester at HLS.)

Reidenberg concludes with the “re-instantiation of the Rule of Law.”  We need to focus on a norm of data misuse, he argues.  Knowledge for some purposes is fine; knowledge for other purposes is not OK.  Reidenberg’s argument here points toward seeking to re-engineer practical obscurity into the technical network.  He cites to Helen Nissenbaum’s contextual integrity argument as support for this concept.  (It’s much in the spirit of our work on the Youth Media Policy project, where we’re trying to translate the data about youth online digital media practices into good policy proposals.)

This talk by Reidenberg proves to be extremely provocative to the Law Lab crowd assembled here.  A spirited discussion starts up during the question period.  Just as a few examples of types of push-back: John Clippinger, the law lab’s co-director, says that he agrees with Reidenberg’s analysis but disagrees in terms of what to do about it.  It’s the wrong time to prescribe solutions right now, Clippinger charges, especially with norms in flux as they are right now.  Julie Cohen (Georgetown law prof who is a visiting professor here at HLS this year), who spoke here in the Berkman Center lunch series just last week, was talking about the virtues of “semantic discontinuity” in response to similar privacy concerns.  The communication process leads to a much finer granularity of information as well as new forms of metadata creation and re-assembly, which in turn makes it difficult to operate in proper contexts, argues Urs Gasser (in a quite wonderful series of questions).  Joel’s limited purpose knowledge regime, he argues, is up against a loss of the rule of law (though Clippinger thinks you don’t have to frame it that way; and Cohen pushes on what he means by the “rule of law”; and Clippinger comes back to the private law mesh of contracts-type of regime as preferable).  Professor Harry Lewis (SEAS at Harvard) wants to know how all this will affect the extensive private surveillance regime and whether law should come into the picture to restrict the use of these privately-collected data.  (My question: would you close the third-party data loophole with respect to state access to privately-collected data without 4th Amendment protections?  Yes, said Reidenberg.)

Just based on the last few weeks of lunches around the Berkman Center, I’m coming up in my mind with a dream seminar on these topics.  For starters, I’d have Joel Reidenberg, Julie Cohen, and Jonathan Zitttrain; present each of them with a common set of hard Internet law problems; and ask them to apply their big-picture theories to their resolution.  I suspect we’d get some extremely interesting, and different approaches, to adjusting the law, technology and norms to fit better with the digital age.  I can imagine there are others to invite to the party, too…

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.