February 27, 2016
I have been busy this week with two matters primarily: writing the curriculum for a new cybersecurity certificate program at UMass (more about that in late April after the official opening) and thinking, talking, writing about the D.O.J. v Apple, Inc. case. Funny thing, there is a lot in common. I could not have imagined a better case study to teach about the global information economy, the culture, law and politics of the Internet – core concepts I have been teaching from Cornell University to John Cabot University in Rome, Italy to my new academic home at UMass.
I always begin my course with a brief history of the Internet, a zoomed out view of modern history from about 1500 to the present with European global expansion and colonization, the transition from feudalism to capitalism, three stages of economic development: agricultural, industrial and information – punctuated by the significance of the printing press as an example of the integration of economic, social and cultural factors with technological developments and communications technologies that proceeded from it. Fast forward to the the shift from vacuum tubes to the transistor, the discovery of packet-switching, digitization, DARPA and the creation of network systems, and before zooming into the ground-breaking day of April 22, 1993 and the public Internet. (Naturally, as a historian, I am not actually a fan of declaring that day as “it,” but it is a quick shorthand for Al Gore and the moment.)
We then move onto a set piece of readings from John Perry Barlow, “Declaration of Independence of Cyberspace,” Frank H. Easterbrook’s “Law of the Horse,” and chapter 7 of Lawrence Lessig’s Code, in which he creates the Goldilocks between these two aforementioned extreme views of the relationship between cyberspace and law by setting out the analytic framework for understanding the Internet using four factors: market, social norms, law and technology.
Now, class, we are ready for our first exercise using the case study: U.S. Department of Justice v. Apple, Inc. Break up into groups of four, one representing each factor, and analyze this case from the perspective of your group’s factor. There are always surprises, often enlightening, wonderful ones – that is a big part of why I love to teach, because inevitably I learn so much – but for the most part we can predict the positions that each group takes. In every case, it is more than I will represent in this blog, but here is the upshot.
The market argues for its autonomy, its brand, and the social value that it bequeaths, in this case, privacy and autonomy (of the information) for the individual customer, as well as economic vibrancy. Social norms, and its academic cousin the social sciences, are always a little messy because they observe people(!), but essentially it chimes in with two apparently conflicting reports: people want privacy but also (by a statistical margin) favor national security, such that in this case, while shareholders support Apple (market factor!), the public in general is on the side of the government. The law group dives quickly down a rabbit hole of legal analysis: Constitutional, statutory interpretation, precedent – often without taking into account public policy more generally. The technology group dives quickly down a rabbit hole of “privacy v. security” determining that it is really security, not privacy, that is at stake, a highly technical but thinly veiled argument for the supremacy of technology.
Now it is time for our first preliminary, a written exam. “Using the Apple case as an example, which factor is more important? Discuss.”
Secretly, in the back of my mind, I hear the Mona Lisa Vito character in My Cousin Vinny exclaim, “It’s a trick question!” In my experience, it is the rare student who gets that point from the start and who answers the question first by explaining how the relationship among these factors is a dynamic. In a snapshot of history, one factor will bubble up, whether it be a scientific discovery and technological development, an appellate or even Supreme Court decision in a legal case, consumers choosing with their wallets, the invisible hand of the market (which I don’t believe in at all, but that old saw gets the point across). If well enough explained, that is what the B student who chooses one factor to explore in detail gets. The B+ does that too, but then addresses how the other factors pile on, so to speak. The A- student, after going through these stages, concludes with the recognition of something approaching a dynamic. The A student starts at that place.
To say what? That is exactly where we, as a society, are at this point in the real-live Apple case. Groups of us can run back to the lab and innovate (let’s create an encryption code no one [today] can crack!) or into society to take another survey (heaven help us :(. We can run down our rabbit holes into legal or technical analysis. (I have done my share of that, and here is a good technical one.) We might all do ourselves well to take a breath and think this one through at a level that is higher than that B/B+ level response, however. This case is a pinnacle moment to which our society has been drawing for some time. Lessig presaged it twenty years ago by coining the phrase “East” and “West” Coast Code. We have had fire-drills: Yahoo v. France, Microsoft anti-trust, or Google student privacy to name a few.
It is time to step our game up and reflect on what we want in the broader sense. National security? Of course. A safe society? Yes (although with the NRA dictating gun laws, and Trump stirring up hate, I sometimes wonder … okay, time to get back to teacher mode). A government and due process that respects individual privacy, especially in the electronic age? Yes. Innovation? Yes! A vibrant market? Yes!! A good society … a democratic republic … public engagement … equitable distribution of wealth within a 21st century regulated free market context (or democratic socialism, choose your pick … Tracy, stop it!) … the even scales of justice ... corporate, government, citizenship balance of power …
How, in light of this case, can we achieve it? Discuss.
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