Professor Cohen repeatedly emphasizes the importance of allowing individuals greater access to the technical protocols that constitutes the infrastructure of networked space. I couldn’t agree more with this principle, and defy anyone to seriously argue on general grounds that the design decisions shaping our public and private spaces should be removed from public scrutiny. However, in thinking about how to transform this principle into practice, I’ve been struggling with a number of obvious problems. Meredith already touched upon one: the technical incapacity of users. Jessica focused on another: unevenness in the distribution of technical ability. I’ll give you my thoughts on these two issues, and also a third: the seeming impossibility of breaking the control of the technical elite through increased technical education.
As Meredith rightly notes, the technical ignorance of users will prevent them from sensibly parsing technical protocols or (god forbid) contributing to standards processes. This ignorance arises out of a combination of factors—lack of interest, intelligence, education, or creativity—and I cannot conceive of a way to successfully combat it. Meredith suggests teaching children basic programming—that would be ineffective for at least three reasons. First, our public education system is not up to the task; our public schools routinely fail at their basic goal of rendering children literate and numerate. Second, a rudimentary understanding of one language would likely be of little assistance to one parsing the universe of networked space. Third, network systems are complex because the problems they must confront are complex. To analogize, teaching a kid phonics isn’t going to help him parse Pynchon. However, though I criticize Meredith, I can’t for the life of me think of any solution. Perhaps what Cohen intends is that experts summarize and publish the policy decisions underlying their technical standards?[1] This is essentially the policy that we’ve adopted in every other aspect of governance—and frankly it doesn’t to work very well. (Look no further than debates over the tax code for evidence of this unfortunate phenomenon).
The difficulties of educating users brings me directly to (a variant of) Jessica’s point—if accessibility is contingent on technical competence, then we should be seriously concerned that certain demographics will be locked out of the human-flourishing bonanza to be unlocked by Cohen’s policies. Alternately, consider a related variant of this concern: how do we develop an education program that will impart technical competence without inculcating acolytes into patterns of thinking that insist on particular technical solutions? This problem of achieving education without inculcation is actually broadly implicated by Professor Cohen’s book, insofar as one of her primary arguments is that legal thinkers have been blinkered in their approach to technology policy by an unconscious allegiance to liberal political theory. I suppose at root my objection is just a restatement of one of the core concerns for any self-governing society, namely, how do we ensure an educated citizenry without treading on individual freedoms.[2]
We can also view Jessica’s point from a perspective in which standards processes are analogized to a participatory democracy. Professor Cohen readily embraces the notion that network standards and protocols have political implications,[3] a stance that motivates her support for broader participation in the processes that generate such standards. My concern is that, even if society does make every effort to improve technical literacy for the masses, many will be excluded from the quasi-democratic standards processes. This would be of little note if the exclusion were random, but in fact all signs point to systematic exclusion along lines of race, gender, and perhaps even ideological orientation. Given economies of scale, inevitable network effects, and the fact that those excluded from the process are by definition the very users who can neither articulate nor generate alternate standards or protocols, I’m afraid that I don’t see how we can pry this apparatus from the hands of the technical elite. At best, it seems as though we could increase the number of the technical elite.
Finally, having exhausted the topic that is the substantive focus of this post, I’d like to briefly address the criticisms of Cohen’s style that have been advanced by my peers (betters, perhaps). Professor Cohen presents her ideas in dense language, making frequent use of technical vocabulary. I think this was entirely appropriate, and indeed necessary. Part of her initiative in the early sections of the book is to inject highly relevant research from the social sciences into the legal discourse. An essential component of much of this research is the vocabulary that it has developed; we create new words because we need a way to talk about new concepts. Flattening those concepts into the stale language of law would be entirely counterproductive, because it would obscure many of the distinctions that these new fields seek to highlight. That’s my thought on the matter, anyhow.
[1] While this would also solve Aaron’s worries about providing a “roadmap for work-arounds, which compromises security,” I’d like to register my strenuous disagreement with Aaron on the ideological underpinnings of that argument. Let’s just say that I side with those who use “security through obscurity” as a pejorative. I think it’s foolish to expect that obscurity can be maintained (hopefully Google’s security wasn’t predicated on such a pipe dream).
[2] I may have left out some intermediate steps in this argument. If so, I apologize for the lack of clarity.
[3] I read the CC-licensed version of her book, so my pagination is screwy. See her discussion of standards processes in Chapter 8, discussing “the political implications of network standards and protocols” and describing the authoring of standards in terms of “governance.”
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