¶ The Laboratorium (3d ser.)

In 1995 an engineer named William Dilworth, who had published a refutation of Cantor’s argument in the Transactions of the Wisconsin Academy of Sciences, Arts and Letters, sued for libel a mathematician named Underwood Dudley who had called him a crank. The case was dismissed. For myself I am more scared of the copyright law than the law of libel. After taking legal advice I decided not to quote any of the authors directly. The alternative was to write some letters saying in effect: ‘I’m sorry we couldn’t publish your paper as a contribution to logic. Can I please publish parts of it as examples of garbage?’

–Wilfrid Hodges, An Editor Recalls Some Hopeless Papers, 4 Bulletin of Symbolic Logic 1, 1 (1998)

American democracy received a stay of execution on Tuesday. But it is still on death row.

I blame the Framers, although to be fair, they may not have had much choice. The Constitution was designed to protect small (by population) states by giving each state equal representation in the Senate, by feeding the count of Senators into the count of presidential electors, and by insulating the Senate from the ordinary Article V amendment process. These provisions are obviously anti-democratic, but they were also considered a necessary compromise. The Framers saw quite clearly that fewer people would have more political power if they lived in small states. That was the point.

We are accustomed today to think about national politics in terms of political parties, and from that point of view it can seem like the Senate arbitrarily and unfairly favor Republicans. Unfairly, yes, but there is nothing arbitrary about it. Small states are rural states. To the extent that one party is a rural party and the other is an urban party, it will be the rural party that benefits from equal representation in the Senate. This is sectional politics, and it would have been perfectly familiar to any 19th-century politician who witnessed sectional fights over internal improvements and over slavery. The conflict between urban and rural factions is as old as history: just ask the the Romans and the socii.

One aspect of Donald Trump’s political genius is that he intuited, was advised, or stumbled into the realization that the American constitutional system gives an immense structural advantage to the rural party. He has knocked the Republican party off of its traditional ideological axes and remade it as a thoroughly rural party. This was not a large shift: it was already the more rural of the two parties, and has been tipping further in that direction for some time. He just gave it a hard shove.

The white male identity politics that Trump has been stoking are the politics of rural resentment. The unifying theme is a hatred of urban elites. You can call them Democrats, or libtards, or globalists, or Jews. You can see them in the universities, in government bureaucracies, in the professions, or anywhere else that still has its head above water. The policy specifics are less important than the sense of shared identity and commitment. There are an Us and a Them, and They live in the cities – cities that are full of crime, depravity, and brown people.

Trump discovered, quite possibly accidentally, that a rural Republican party can take and hold electoral power even if it represents a minority of the population and receives a minority of votes. 2016 set up the hypothesis, and 2018 confirmed it. Even without the House (where the urban party also is at a structural disadvantage, but less of one), the Presidency plus the Senate is enough to staff the agencies and to stack the courts.

The Republican party has been almost completely purified into the Trumpublican party. Many of the retired or defeated Republican House members were suburban “moderates,” and many of the Republican Senators who would publicly rebuke him (even if they generally voted with him) are now retired or dead. Those who remain are either vocally loyal or have made their peace and will go along with whatever.

Of course Trump is moving immediately to fire Sessions and stop the investigations. He can, and the Senate won’t interfere. He’ll still get his replacement attorney general, his judges, and whatever else he demands. He’ll still get his political cover.

In fact, the lesson of 2018 is probably that the investigations don’t matter politically. It’s hard to imagine what else could now come out that would be enough to sway someone who wasn’t persuaded already. The United States of America now consists of 45% Gryffindor, 35% Death Eaters, and 20% people who are uncertain between the two. There are no more surprises. Even if his aides and family members are tried, convicted, and imprisoned, do you really think that will make the difference politically? Imagine what Fox News, Gateway Pundit, and Infowars will say. Is there anything, anything at all, that would make them turn on him? Can you imagine any cruelty, any mistake, any disaster, or any scandal that they would not ignore, explain away, or lay at the feet of those perfidious Democrats?

The global trend is clearly in the direction of populist right-wing authoritarianism: it’s visible on every continent and in every major election. Trump himself was a fluke: he accelerated what was already coming. And he was so extreme, so corrupt, so heartless, that there was at least the possibility that he would trigger a backlash that would discredit the reactionary movement in the United States for a political generation. But it didn’t happen in the primaries, it didn’t happen in the general election in 2016, and it didn’t happen in 2018, either. It’s not going to happen, not in the way we need. It is easily possible to imagine that Trump will lose the 2020 election. It is inconceivable that Trumpism will be put back in the bottle.

The present author is by no means a philosopher. He has not understood the system, whether there is one, whether it is completed; it is enough for his weak head to ponder what a prodigious head everyone must have these days when everyone has such a prodigious idea. … He writes because to him it is a luxury that is all the more pleasant and apparent the fewer there are who buy and read what he writes. … I throw myself down in deepest submission before every systematic ransacker: “This is not the system; it has not the least thing to do with the system. I invoke everything good for the system and for the Danish shareholders in this omnibus, for it will hardly become a tower. I wish them all, each and every one, success and good fortune.”

–Søren Kierkegaard, Fear and Trembling (Howard V. Hong & Edna H. Hong trans.)

Seventeen years ago, I had a uniquely, memorably bad customer service experience with Barnes & Noble. I received a gift card, purchased in a physical store, as a present, and I tried to use it at bn.com. This was impossible – I understand now because of how they had set up the website as a separate business unit – but no one I spoke to on the phone or in a store could understand why or what to do about it. At one point they suggested I postal-mail the gift card to their office in Secaucus, New Jersey, to the attention of “Lynn,” and their accounting department would find a way to reissue it properly. They couldn’t seem to understand why I was unsatisfied with this “solution” to their self-created problem.

The experience soured me, permanently, on bn.com. It wasn’t just that I couldn’t get my books (eventually, I did). It was that their bureaucracy and IT were so fundamentally disorganized, and their customer support team so disempowered, that I knew I couldn’t trust Barnes and Noble as an organization to come through when it mattered. This was not a company I wanted to trust with my money, or to deliver an item when I really, seriously needed it. Instead, I took my book business (and, over time, many other kinds of online business) far more to Amazon. The experience wasn’t perfect, I knew I could trust Amazon’s systems when it mattered.

I had another bad customer service experience this weekend, one that reminded me of my old run-in with Barnes & Noble. Only this time, it was Amazon that dug itself into a hole and couldn’t stop digging.

Wednesday : Our dishwasher is broken. We need a new thermal fuse. I found one on Amazon, ships from and sold by Amazon, available on Prime for two-day delivery. So I put it in my cart and hit “order.” Delivery was scheduled for Friday.

Friday : It went out for delivery, but was never actually delivered. I called Amazon customer service, and the person I spoke to apologized and promised to have it redelivered on Saturday.

Saturday : It wasn’t delivered. I called Amazon customer service again, and this time I got passed off to someone in Amazon Logistics. He told me two disheartening things. First, the first person I’d spoken to had marked the order as a “reschedule,” which he shouldn’t have done because it that changes would irrevocably foul up the delivery in some way that could not now be undone. Second, although he’d ask the designated liaison at the local delivery office to get in touch with me, h couldn’t call this person up, and neither could I. It had to be done via a form. But I’d be contacted by this person either Saturday night or first thing Sunday.

Sunday : Around noon, the local delivery liaison called me to say that the package had been located and it would go out for delivery later in the day. Again, it wasn’t delivered.

Monday : Early in the morning, I received an automated email from Amazon customer service saying that the package had been returned as undeliverable because it was “damaged or contains a hazardous item.” The order has been cancelled.

Obviously, there is a great deal wrong with this story, including the repeated broken promises of delivery the next day, the alleged incompetence of the first person I spoke to, the inability to realize before today that the problem was that the package was damaged (if indeed it is), and simply cancelling the order rather than asking me whether I wanted it cancelled or repeated.

At this point, it isn’t about the fuse. I’ll get one somewhere else. If I’d know what would happen, I’d have ordered it somewhere else in the first place. And I am done with Amazon for parts.

No, I’m writing because Amazon has a systemic problem, and it’s the same sort of a systemic problem I observed inside of Barnes & Noble when their poor customer service drove me to Amazon back in the day. The Amazon shipping operation is stovepiped in a way that prevented anyone inside the company from taking responsibility for the package. Amazon’s systems couldn’t keep track of the package, where it was, and what was actually wrong with it. And even once I had specific promises to fix things, with detailed claims about what would happen next, from multiple people, every single one of those promises turned out to be mistaken.

This is, needless to say, not what I expected from Amazon, whose entire play as a company is getting the back-end logistics and systems right so that the customer experience is simple and painless. Instead, it’s exactly the kind of Balkanized chaos I associate with older pre-Internet companies that never really got e-commerce and have to go lie down in a corner when things get too stressful.

Congratulations, Amazon. Take a good look in the mirror. You’re turning into your parents.

I have released a new edition of my Internet law casebook. While I revise and update the book every summer, this is an unusually big revision. I had had the feeling that the subject was slipping through my fingers and maybe no longer made sense, so I did a lot of soul-searching in thinking about what the previous edition no longer got right. Many, many hours later, I think I’ve managed to climb back on the tiger.

The most obvious, and therefore least interesting, feature of the new 8th edition is that it catches up with some major developments over the last year, including Carpenter, Wayfair, the GDPR, and the repeal of the network neutrality rules. In some cases, these induced substantial knock-on changes: half of my old network neutrality chapter became obsolete overnight. There are also a lot of smaller updates as newer cases and questions replaced older ones that had fallen behind the times.

In the middle of the scale, I reworked substantial swaths of the jurisdiction and free speech chapters. The jurisdiction chapter now hits unconventional but illuminating topics like choice of law and the scope of Congress’s Commerce Clause authority online. And the speech chapter now deals with much more of the troll playbook, including stalking and impersonation. I also added a section on copyrightability to the copyright chapter, with my usual irascible thoughts on the subject.

And most excitingly, I realized that Internet law has increasingly become the study of what happens on and around platforms, and rebuilt what had been the “private power” chapter around that theme. That led me to craft a new pair of sections: one on how governments can use platforms as chokepoints, and the other on platforms’ rights against governments and users. They lead naturally into the antitrust and network neutrality sections. That chapter finally makes sense, I think.

As usual, there are small corrections and typographical tweaks throughout, plus jokes, snark, and obscure cultural references. I thoroughly enjoyed working on this revision, even as it dragged on and on. I hope that you enjoy reading it, but that it won’t drag for even minute.

As usual, the book is available as a DRM-free PDF download on a pay-what-you-want basis with a suggested price of $30. It’s also available in a perfect-bound paperback version from Amazon for $65.25. Thanks as always to my editors at Semaphore Press for their fairer business model. In true Internet style, we cut out the middleman and pass the savings on to you.

One thing that’s been especially exhausting for me over the last two years is the increasingly unshakeable sense that the basic architecture of personal participation in democratic self-government is broken beyond repair.

By this, I don’t mean that government has been captured by a powerful and wealthy elite that shuts everyone else out: it has, but only at times and only in part. I don’t mean that people with bad values are in power and pursuing bad policies: they are, but throughout history they often have been. And I don’t mean that the people in power are threatening to destroy basic democratic institutions: they are, but even if formal institutions like voting rights, an independent judiciary, and anti-corruption laws were in perfect shape, there would still be a much deeper rot.

Instead, I mean that “democracy” assumes and depends on a set of stories about how individuals do and say things that collectively determine what government does. These stories involve words like “debate,” “public opinion,” “influence,” “deliberation,” “activism,” “demonstrate,” “support,” and so on. There are lot of variations, of great interest to political theorists and no much interest to anyone else, but the basic thrust of them all is more or less the same. People think and talk about values, government, and the world; they try to persuade each other and government officials; they vote to support the policies they believe in. There is a crucial link in there from words to action: people figure out what they want from government, which then translates (however imperfectly) into government action.

This older and dying narrative of political participation asked people to speak thoughtfully, act deliberately but with conviction, and to practice in their daily lives the values they wanted their government and society to embody. This is a sustainable way of living politically; politics is a source of social sustenance. The exact mechanisms by which this authentic mode of living reasonably translated into political impact were always a little bit tenuous, but it was clear enough they existed. The foundation of collective self-government was individual civic virtue.

Now, unfortunately, it is increasingly obvious that this style of personal engagement with politics simply doesn’t work at all. The mass media won’t cover it (not when there’s another Trump tweet to write about it), and it won’t go viral on social media. It might be personally enjoyable, but it is essentially ritualized play, rather than a form of actual politics.

Instead, the mechanism of control over government is no longer reasoned persuasion but emotional mobilization. This is partly a function of living in a partisan age: Trump may have revealed that base-activation is the dominant electoral strategy. But I’m becoming convinced that it’s even more a function of living in a social-media age. The way to build mass political power is to get something emotionally powerful and politically activating go viral among people who agree with you.

Again, this may seem like a rant against polarization. But this rant, at least, is not. The important phrase in that sentence is not “among people who agree with you”; it is “emotionally powerful.” Effective political participation requires sustained collective emotional commitment to a cause much more than it requires sustained collective reasoned commitment.

To be sure, my Facebook and Twitter feeds are filled, morning to night, with reasons to oppose the Trump administration’s policies and to mobilize against them. And the reasons are usually excellent ones. But the reasons are just the popsicle sticks: the supporting armatures for the emotional payload that does the real work.

Because the thing about emotional mobilization is that it works. The left wins when it mobilizes on the basis of mass outrage: against the travel ban, against taking away people’s healthcare, or now against tearing children from their parents. These are awful policies and the mobilization against them is effective in blunting them and laying a foundation to win enough votes to fix them for real.

But this new mode of political engagement is profoundly exhausting. Keeping up with the news requires struggling through a firehose of attempts to activate your passions. They’re pretty effective attempts, too, since the people making them share your values, goals, and premises. They know how to hit you where it hurts, and you count on them to. People who you disagree with are activating too. Deliberately or not, they make you mad at their stupidity and immorality – and the people who agree with you are great at digging up and highlighting the things most likely to make you mad.

Add another emotion: guilt. Every encounter with politics on social media makes me feel guilty if I sit it out: I’m not helping with a worthy cause. It makes me feel guilty if I join in: I’m degrading public discourse. And don’t even get me started on trying to post with nuance: I couldn’t tell you how often I’ve deleted a post because I expected to be yelled at or because I didn’t want to distract from useful yelling.

We are living in a crisis. Hugely consequential things are being fought over and settled daily. The most important election of anyone’s lifetime is probably the one coming up in November. This is the time to act; this is the time when it matters most. But it has never hurt like this.

The usual cliche about politics is that it compromises your values: you have to do bad things in the service of a greater good. Ordinary citizen politics now increasingly requires a different kind of compromise: you have to live an unvirtuous life in the service of a greater good.

I don’t think this can go on for very long. And I fear it will not.

I have just posted Speech In, Speech Out, one of several scholarly responses included as part of Ronald K.L. Collins and David M. Skover’s new book, Robotica. The book is their take on how the First Amendment will adapt to an age of robots. To quote from the publisher’s description:

In every era of communications technology – whether print, radio, television, or Internet – some form of government censorship follows to regulate the medium and its messages. Today we are seeing the phenomenon of ‘machine speech’ enhanced by the development of sophisticated artificial intelligence. Ronald K. L. Collins and David M. Skover argue that the First Amendment must provide defenses and justifications for covering and protecting robotic expression. It is irrelevant that a robot is not human and cannot have intentions; what matters is that a human experiences robotic speech as meaningful. This is the constitutional recognition of ‘intentionless free speech’ at the interface of the robot and receiver. …

And here is the abstract to my response in Speech In, Speech Out:

Collins and Skover make a two-step argument about “whether and why First Amendment coverage given to traditional forms of speech should be extended to the data processed and transmitted by robots.” First, they assert (based on reader-response literary criticism) that free speech theory can be “intentionless”: what matters is a listener’s experience of meaning rather than a speaker’s intentions. Second, they conclude that therefore utility will become the new First Amendment norm.

The premise is right, but the conclusion does not follow. Sometimes robotic transmissions are speech and sometimes they aren’t, so the proper question is not “whether and why?” but “when?” Collins and Skover are right that listeners’ experiences can substitute for speakers’ intentions, and in a technological age this will often be a more principled basis for grounding speech claims. But robotic “speech” can be useful for reasons that are not closely linked to listeners’ experiences, and in these cases their proposed “norm of utility” is not really a free speech norm.

Robotica also includes Collins and Skover’s reply to the commenters. In the portion of their reply that discusses Speech In, Speech Out, Collins and Skover say that I have misunderstood their argument by conflating First Amendment coverage (what qualifies as “speech”) and First Amendment protection (what “speech” the government must allow). Intentionless free speech (IFS), discussed in Part II, is a coverage test. Only once it is resolved does the norm of utility, discussed in Part III, take the stage to answer protection questions. Their example about a “robotrader” whose algorithmic buy and sell orders qualify as covered speech comes near the end of Part II, so when I use it to criticize the norm of utility, I am mixing up two distinct pieces of their argument.

This reply is clarifying, though probably not in the way that they intend. They are right that I misunderstood the structure of their argument. But in my defense, Collins and Skover misunderstand it too.

Speech In, Speech Out applies the norm of utility to coverage questions because that is how Robotica applies it. For the robotrader’s messages to other robots to qualify as covered speech, one needs a theory that is not just intentionless but also to some extent receiverless. Collins and Skover claim that there is covered speech when robots exchange information “at the behest of and in the service of human objectives.” (46) But this is an appeal to the purpose and value of the message, not its meaning. If there is a nexus to the reception of speech by a human listener here, it is coming from the norm of utility, not IFS. So if my response anachronistically smuggles Part III’s discussion of protection and the norm of utility back into Part II’s discussion of coverage and IFS, I am only following their lead. The “[c]onfusion over this dichotomy” (113) they perceive in my response is just a look in the mirror.

Although I stand by the criticisms in Speech In, Speech Out, I regret the process that produced it. The principal reason that Collins and Skover and I have spent so long stumbling around in this scholarly hall of mirrors is that our exchange has taken place entirely through completed manuscripts: they wrote their book, we commenters wrote our responses, they wrote their reply. Questions for each other were off the table. They picked the format to promote “[d]ialogic engagement” (111), and there is indeed more dialogue here than in a standard monograph. But compared with the lively, back-and-forth, interactive qualities of a good workshop, conversation, email chain, or even blog-comment thread, one and a half rounds of manuscript exchange aren’t much at all. Fixed-for-all-time publications are a good way to memorialize one’s best understanding of a subject, but there are better ways to converge more quickly on mutual understanding in the first place. In the future, I will look more skeptically on invitations to take part in scholarly projects where ex parte contacts are off-limits.

However, much of the effect of an impressive and expensive window is lost if it has to be inserted into a tunnel-like opening in a thick wall. Inevitably, attempts to provide bigger windows set in thinner walls ran into trouble with thrust lines. Norman architecture was basically Roman architecture and cannot be made to do this sort of thing, because it depends for its stability and safety on the use of thick walls. But this did not stop builders from trying, and it has been said of late Romanesque architecture that the question to ask of any particular building is ‘not whether, but when, the Great Tower fell’.

J.E. Gordon, Structures: Or Why Things Don’t Fall Down

Have I mentioned that I expect death around every turn, that every blue sky has a safe sailing out of it, that every bus runs me over, that every low, mean syllable uttered in my direction seems to intimate the violence of murder, that every family seems like an opportunity for ruin and every marriage a ceremony into which calamity will fall and hearts will be broken and lives destroyed and people branded by the mortifications of love?

–Rick Moody, Demonology

I’ve posted a new essay, The Platform is the Message, although “rant” might be a better term. At the very least, it fits into the less formal side of my academic writing, as seen in previous essays like Big Data’s Other Privacy Problem. I presented it at the Governance and Regulation of Internet Platforms conference at Georgetown on Friday, and the final version will appear in the Georgetown Law Technology Review as part of a symposium issue from the conference. I’ve been told that my slide deck, which starts with a Tide Pod and ends with the Hindenburg, is unusually dark, even for an event at which panelists were on the whole depressed about the state of the Internet today.

Here’s the abstract:

Facebook and YouTube have promised to take down Tide Pod Challenge videos. Easier said than done. For one thing, on the Internet, the line between advocacy and parody is undefined. Every meme, gif, and video is a bit of both. For another, these platforms are structurally at war with themselves. The same characteristics that make outrageous and offensive content unacceptable are what make it go viral in the first place.

The arc of the Tide Pod Challenge from The Onion to Not The Onion is a microcosm of our modern mediascape. It illustrates how ideas spread and mutate, how they take over platforms and jump between them, and how they resist attempts to stamp them out. It shows why responsible content moderation is necessary, and why responsible content moderation is impossibly hard. And it opens a window on the disturbing demand-driven dynamics of the Internet today, where any desire no matter how perverse or inarticulate can be catered to by the invisible hand of an algorithmic media ecosystem that has no conscious idea what it is doing. Tide Pods are just the tip of the iceberg.

I have very limited ability to make revisions, but I would still be happy to hear your comments and suggestions. I’m still working through my thoughts on these topics, so even if I can’t incorporate much more into this essay, I hope to revisit the issues in the near future.

UPDATE July 29, 2018 : I have posted the final published version; the link is unchanged.

I’m taking part in a blog symposium at Just Security on the United States v. Microsoft case currently before the Supreme Court. My essay, thrillingly titled “The Parties in U.S. v. Microsoft Are Misinterpreting the Stored Communications Act’s Warrant Authority” makes two arguments. First, framing the case as a question of whether the SCA is “domestic” or “extraterritorial” is somewhere between misleading and just plain wrong. And second, the SCA should be interpreted as mildly extending the warrant authority in Federal Rule of Criminal Procedure 41 rather than creating a new warrant authority out of thin air. Both of these points are directed towards the same goal: returning the case to a narrow and tractable question of statutory interpretation rather than a high-stakes clash of grand theories. Here are a few excerpts:

The first problem with this framing is that the Supreme Court’s distinction between domestic and extraterritorial laws is an impediment to understanding. The terms are just empty labels for the conclusion that particular conduct either had or lacked the appropriate connections to the United States. Territoriality arguments may be well-intentioned, but they have the effect of shutting down reasoned analysis by drowning out attempts to determine what the relevant connections actually are. In Internet cases, people with ties to different jurisdictions affect each other in complicated ways: reducing a complex spectrum of cases to a single factor like the location of one party or the location of a server is a recipe for disaster. When I realized that the Supreme Court had granted certiorari in an electronic evidence case that turned on extraterritoriality, I buried my head in my hands.

Congress did not write on a blank slate to create a new kind of “warrant.” Acting as though it did is why Microsoft and the DOJ can give such radically different interpretations of what a “section 2703 warrant” entails. If all you have to go on is traditional warrant practice and Rule 41 is just an example of one kind of warrant, then the problem is open-ended, it is possible to see almost anything in the inkblot, and one is naturally tempted to lean on conclusory canons like the broad-brush presumption against extraterritoriality. But if one reads section 2703(a) as written — incorporating Rule 41 and state warrant procedures except insofar as it allows any “court of competent jurisdiction” to issue one — then one faces a more straightforward problem of statutory interpretation.