the Idea that Copyright Protections Limit Musical Creativity Strikes the Wrong Chord

By Michael Reinert ‘82

Michael Reinert  ‘82  is a Partner at Fox Rothschild LLP, and is one of Billboard Magazine’s Top Lawyers in the Music Industry.

I am writing in response to the position taken by Prof. Buccafusco in his article, "The Blurred Lines of Copyright Law are Limiting Musical Creativity" in the Fall edition of Cardozo Life (included below). There are many points he has raised which give rise to strong counter­arguments that should and need to be addressed. What dismays me the most, though, is that this line of thought is in keeping with a growing number of so-called copyright scholars who believe that virtually all copyright protection is unjust and that all creative efforts should be free and available to all with no restrictions. This position is currently being put forth in a "Restatement" being prepared by the American Law Institute and which is authored in part Christopher Sprigman

(mentioned in Professor Buccafusco's article as a colleague with whom he agrees) who has argued in the past that protecting a creator's copyright is harmful and who has downplayed or dismissed the devastating effects of piracy. This position, as well as that set forth in Professor Buccafusco's article, is a serious threat to creativity, and I speak as someone who has spent 35 years practicing law in the music business, both as a senior legal counsel to some of the biggest record labels in the world and as private counsel to some of the biggest artists in the world.

Let's examine the professor's argument.

The most disturbing point that he puts forth is that "pop musicians simply may be running out of creative space." He describes an "innovation space" that seems to be a place where creativity has boundaries and gets "filled up".

He further writes, "The scope of musical creativity likely isn't infinite."

My personal surprise at such a statement is only equaled by the sincere fear it instills in discouraging creativity at all. You might as well turn to every young songwriter today and tell them "don't bother because it's all already been done and you can't possibly come up with something new and original, you'll only get sued."

Part of the problem here is that the Professor ignores the very premise he puts forth when he says that "certain kinds of music that would have been unthinkable a generation or two earlier now fall squarely in the mainstream." As if Rock and Roll and Hip Hop were the first musical genres to defy their earliest critics and blossom into popular music. And he further denigrates the creative process in popular music by saying it has to apply to the lowest common denominator of musical taste, so therefor it cannot possibly be innovative in order to be "appealing." There's a "sizable share" of consumers (according "new research" that the professor neither quotes nor names) that just simply seem to want the same old thing, the comfortable shoe, the recognizable melody. They don't want new and innovative, they want familiar and safe. Perhaps there is some element of truth to that, just as vanilla is still the most popular ice cream flavor. But just because you want to please the masses, that doesn't give you a license to steal. There may be a finite number of notes on the scale, but to suggest that therefore there is a finite scale of creativity is to close one's ears to reality. We see and hear every day new innovations in music that do not tread on the rights of others, even though they may be utilizing the very same notes.

But what is most disconcerting is when he puts the blame for this supposed limited creative space squarely on the shoulders of "legacy" artists who, according to his definition, have nothing to lose by making a claim because they are either dead or no longer creating new works, so therefore they do not run the risks of being infringers themselves. And since he sees them as "beneficiaries of being at the right place at the right time," he is basically saying that they are merely opportunists who are just out to make a buck regardless of their supposed creative outrage when their works are misappropriated (a position espoused by Mr. Sprigman and other "copyleft" scholars).

Does anyone else besides me hear the chorus of rolling dead bodies?

First, I suggest that his definition is tainted so as to limit the types of plaintiffs to a specific sub-class of "legacy" artists. Dead or "inactive". I wonder if he would consider any of these artists to be considered "legacy" - Elton John, Paul McCartney, Stevie Wonder, Robert Plant, Rod Stewart, Berry Gordy. All of them had enormous hits from the time frame Professor Buccafusco sets out in his article (Marvin Gaye, The Hollies, Spirit) yet all continue to make new music. But theirs are amongst the most covered catalogs of all time, with generation after generation paying homage to their music by interpreting it in their own way, typically respectful, often unique and always within the terms of the law (compulsory licenses).

But then there are the instances where new artists want to take their own creativity and respect for the past a step further, so instead of a straight cover they create something with a sample, or perhaps a full derivative work. Obviously, these types of uses are not automatic by simply following a set of rules. These uses require the permission of the original copyright owner, something Professor Buccafusco sees as the very heart of the problem. Why should there need to be permission asked if there is not even a definitive taking, but only a substantial similarity? Why handcuff the creative flow of new music from new artists, just because you may have done so first? Why? Because the very nature of innovation and creative adventure is based on the basic concept that if you create something, you have certain rights in and to that creation from the moment of inception. Common law copyright. Some of those rights are enforceable, some are not. But it is impossible to argue that no rights vest in a creator. And every creator I know has the respect for the process to understand the need to respect the rights of other creators, just as they would want for themselves. Again, speaking with the personal experience I have in the industry, I have seen literally thousands of proper requests made by new artists to older artists who came before them to ask permission to embellish, re-interpret, mash, or utilize their original work in such a way so as to create something new and unique - a combination of prior and new creative thoughts, a collaboration of artists - and to be sure it is properly credited and recognized for what obvious contribution it makes to the new work, including proper financial remuneration. I have also seen many such requests denied, for multitudes of reasons but almost always rooted in a creative decision at heart. This is the same right we extend to songwriters when someone wants to use their song in a TV commercial, or movie, or political ad. There may be an association they disagree with, there may be an artist they dislike, or there may simply be a creative disagreement about the use of the underlying song in the proposed context. Regardless, the rights of each of the creators should be protected and respected above all else. Even if it means the new work never sees the light of day. But the Professor's position would eliminate such protections because it does not recognize that new creators still have a vast universe of music to explore and create, so therefore they must instead be given the opportunity to take from others. And to further imply that these rights should not be transferrable especially under estate laws is to devalue all intellectual property, not just music. Every creator of any type of property - intellectual or real - which generates incomes during their lives has the right to pass that income stream to his or her heirs for as long it is sustainable. And with that goes the right and responsibility to properly protect that property that the original creator held dear from both creative misuses and financial devaluation which that creator sought to share with his family.

Believe me, the vaults are filled with songs that never got released because they could never get cleared. And while some may see that as undue restriction, I ask those same people to put the shoe on the other foot - if they had created something special to them only to see it misappropriated by a third party without permission in an unacceptable way, would they still take this position?

Now, I will agree that there have been some frivolous suits brought with virtually no basis in fact or musicology. This is the truth, however, in all areas of litigation. We suffer the deceptions of the unscrupulous in order to preserve the process that protects the just. And another truth is that for as long as I have been in the business and far before that, copyright infringement suits were being brought against popular artists. Some just and some not, but I do not see that there is a new, greater proliferation of these types of suits that should give us cause to legislate against them. Is there a run on the courts that I've missed? I work with some of the top entertainment copyright litigators in the country and while there is frustration to an extent regarding the uncertainty of prevailing in such a suit, they all agree that such suits are still more a rarity than the norm. There have been some extraordinary high-profile suits in recent years, including the not so subtle reference the professor makes in his title to the "Blurred Lines" decision which has been debated heatedly from both sides, both in the courts and out. These are cases that capture the attention of the public because of their notoriety and the familiarity of the materials. Plus, in this day and age we all have access to the information surrounding these cases in virtual real time, anywhere we are, so their place in the collective spotlight gets even more enlarged. But these are cases that are few and far between given the number of new songs that hit the charts every week. Yes, there are some truly innocent players in this, who never had any intention of misusing someone else's work, and while they have the right to defend theirs as original, they must also accept the reality of their unoriginality when confronted with it.

To limit the rights of creators will achieve the exact opposite result that Professor Buccafusco and his colleagues profess will happen - creators will be reluctant to put their works out to the public for fear that they will never have any control of their works again. As someone who has spent my entire career working to protect the rights of creators and also as someone who has had the good fortune to have my own creative works published, I hope that all creators out there and their representatives will stand up to this form of restrictive enforcement that only serves those who use and consume but do not create.

Lastly, I feel CSL needs to provide a platform for rebuttal to the positions staked in Professor Buccafusco's article. At the very least I would have hoped that there be some disclaimer that the position was that of the Professor's and not the school's. But the manner in which the article is presented, "Faculty With Impact", leads the reader to believe that the school supports Professor Buccafusco's position and implies it is having an "impact" which somehow puts the school in a favorable light. I feel to leave it out there without a fair and equal response is a disservice to the Cardozo community and the creative community at large.

Thank you for your time and attention.

The views expressed herein represent the personal opinion of the undersigned and do not necessarily represent the opinion of Fox Rothschild LLP or any other member of its workforce.

Sincerely, Michael Reinert ’82


The Blurred Lines of Copyright Law are Limiting Musical Creativity 
Professor Christopher Buccafusco

Sometimes it seems as if today’s musicians spend as much time defending themselves against copyright infringement lawsuits as they do writing new music. Reading about suits against Ed Sheeran, Nicki Minaj, Pharrell Williams, Robin Thicke, and a host of others, one might be tempted to think that contemporary pop artists are just uncreative copycats. 

The real issue, however, is that pop musicians simply may be running out of creative space. And this problem is being exacerbated by the behaviors of what we might call “legacy” interests—parties who own copyright interests in already-created songs but who won’t be making any new music. 

I have argued, with my colleagues Stefan Bechtold and Christopher Sprigman, that any field of creative production has a certain “innovation space.” This space represents the world of possible solutions to a given creative problem. At the beginning of a field, whether sonata form or smartphone design, the innovation space is wide open. Anyone is free to do almost anything. Over time, however, portions of the innovation space get filled by intellectual property rights. The earliest creators fill up the innovation space with their copyrights and patents, limiting the options for newcomers. Newer creators are faced with a dilemma in which they must either find a portion of the innovation space that hasn’t been claimed or pay a license fee to one of their predecessors. 

 The available innovation space for popular music has changed substantially over the last 75 years. Some innovations, most importantly rock and roll and rap, have dramatically expanded the areas of available musical creativity. Certain kinds of music that would have been unthinkable a generation or two earlier now fall squarely within the mainstream. 

But there are reasons to be concerned. The scope of musical creativity likely isn’t infinite.  New research applying social science methods to aesthetics suggests that people’s musical preferences are more limited than was previously believed. So while it’s possible that we’re on the cusp of another major evolution in musical taste, it’s also possible that we’re getting close to exhausting the varieties of music that people find appealing. 

Moreover, whatever is happening at the boundaries of musical innovation, the innovation space at the core of popular music is becoming as crowded as a Tokyo subway car. Finding a pleasing melody that hasn’t already been used by another artist is likely to get harder and harder. While innovations will create demand for new kinds of music, there will always be a sizable share of consumers who want new music that lies close to the center of traditional pop. Discovering ways to satisfy that demand is becoming increasingly difficult. 

Unfortunately, the behaviors of some copyright owners are making this problem worse. The available innovation space depends on the scope or breadth of the rights granted to copyright owners. Copyright law doesn’t just prevent exact duplication of a work; it also prevents “substantially similar” copies of work. Lately, the scope of musical copyrights seems to be expanding. 

Active creators will typically have conflicting interests. They want copyright laws that are broad enough to give them strong rights against competitors but narrow enough to ensure there is always room in the innovation space for their next song. One day, they are potential plaintiffs with grievances against copyists, but the next day they could be potential defendants on the hook for millions of dollars. 

But legacy interests - those parties who are no longer making music or who have inherited rights from previously active musicians - do not face these competing concerns. Since they’re not creating any new music, they don’t run the risk of being hauled into court. The statute of limitations will have run out long ago for any copyrights they or their parents may have infringed. 

It’s not surprising, then, that many of the recent lawsuits have been brought by legacy interests. Plaintiffs like Marvin Gaye’s estate or older bands like The Hollies and Spirit will always prefer broader copyright protection, because they never have to worry about being defendants. They can push for copyright law to protect more than just a song’s melody, but also its rhythm, feeling, or groove. 

Many legacy interests from the 1960s and 1970s are the beneficiaries of being at the right place at the right time. Thirty years earlier, many of their contributions would have failed to gain recognition or copyright protection, as the stories of the many black progenitors of rock and roll indicate. Yet 30 years later, these artists would have faced a much more crowded innovation space and much greater risk of copyright infringement. 

It’s possible that overcrowding at the core of musical creativity will encourage artists to push the musical boundaries even further. But it’s also possible that expanding music copyrights will simply make it harder (and more expensive) for newer artists to produce the kinds of music we want to listen to. Then, all we’re likely to see is a massive wealth transfer from future consumers and artists to the heirs of those who lived and worked at just the right time. If older creators and their descendants are unwilling to stop the barrage of lawsuits, Congress and the courts should step in and determine the appropriate scope of copyright law. Leaving to a jury the open-ended question of whether two songs are “substantially similar” could end up hindering musical creativity. 

Christopher J. Buccafusco is the director of the Intellectual Property & Information Law Program at the Benjamin N. Cardozo School of Law at Yeshiva University. 



Is Now a Good Time to Talk About Syria?

By Professor Deborah Pearlstein

While our ongoing war in Syria regularly gets lost amidst other also-pressing news, the growing set of clashes between U.S. military and forces allied with Syrian President Bashar al-Assad led Congress this summer to begin asking whether the President actually has legal authority to start a new kind of war in the Middle East.  The U.S. military has of course been engaged in anti-ISIL operations in Syria since 2014.  But violence in recent months – including an incident in June in which the U.S. military shot down a Syrian jet, as well as multiple U.S. efforts to defend its creation of a "de-confliction zone" in Syria, an area surrounding a garrison used by U.S. Special Forces to train partner forces there – involves the United States far more directly in state-to-state conflict with Syria (and its allies, Iran and Russia) than we have previously been.  Apart from the serious policy implications of this kind of escalation, it is far from apparent what domestic legal authority supports it. 

One possibility the Administration has advanced is that the anti-Syria actions are impliedly authorized by the 2001 Authorization for the Use of Military Force (AUMF), a statute that gave the President the power to use "all necessary and appropriate force" against those nations, organizations or persons he determines were responsible for the attacks of September 11. The Obama Administration indeed relied on the 2001 AUMF for its operations against ISIL in Syria.  And while scholars and policymakers alike have written critically about the plausibility of relying on a 2001 AUMF to attack a group that did not come into existence until years after 2001 (and is indeed today the sworn enemy of Al Qaeda, the group that was responsible for the attacks of 2001), we might set those arguments aside at least initially to consider the new claim on its own – that is, to the extent the AUMF supports U.S. operations in Syria at all, it surely also must include implied authority to defend U.S. forces operating there against any attack. 

The notion that the AUMF contains some implied authority for U.S. troops operating under its auspices to defend themselves against foreign attack is in one sense entirely plausible.  If, as the Supreme Court held in 2004ǯs Hamdi v. Rumsfeld, the AUMF contains implied authority to detain war prisoners because such detention was a recognized incident of the use of force under international law, then surely self-defense of one’s own forces (at least to the extent permitted by international law) should also be within the realm of implied statutory authority.  The problem is,

U.S. self-defense is not what most of these recent incidents have involved. By the United States’ own account, the Syrian SU-22 we shot down was firing on local anti-Assad fighters the United States supports, but U.S. forces were not at risk. CENTCOM rather explained that the move was in "collective self-defense" of coalition-partnered forces – a concept that appears pulled from Article 51 of the UN Charter (a treaty we are obligated to observe as supreme law of the land under our own Constitution’s Article VI) providing in relevant part: "Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations." But Article 51 by its terms limits the right of "collective" self-defense to UN member states.  Local anti-Assad forces, whatever their merits, aren’t states.  More, especially to the extent our establishment of a "de-confliction zone" is effectively seizing an area inside Syrian territory for our use and defending it from incursion by Syrian forces, we are not engaging in defense (self or otherwise) at all, but rather in the partial armed occupation of another country – which is, to put it mildly, the opposite of a recognized incident of force under international law.

So, what about finding implied authority in the AUMF under principles of statutory interpretation unrelated to international law – based on text, context or legislative history?  To pursue this theory, it is impossible to look just at the Administration’s latest interpretive move, but rather at the set of inferences one would have to draw from the AUMF itself.  For buying the notion that the 2001 AUMF authorizes U.S. bombing of Syrian or Syrian-allied forces requires us to embrace not just one dicey inference, but three: (1) that a statute limited by its text to authorizing force against the groups that attacked us in 2001 extends to a group that did not exist in 2001 (and is itself at war with the group that did attack us in 2001); (2) that the statute includes some implied authority to defend our own forces from attack not only against those groups the statute authorizes us to fight, but as against any nations and organizations anywhere worldwide our AUMF operations extend; and (3) that the statute further authorizes us to "defend" any local group with which we might ally in the course of global AUMF operations – including by excluding a sovereign state from its own territory in order to secure training space for the local group.  

It is implausible that the Congress that passed the 2001 AUMF thought it was authorizing all this.  The textual limitation of the 2001 AUMF to the groups responsible for the attacks of 9/11; longstanding canons of statutory interpretation that would favor reading a statute to accord with our binding treaty obligations where possible; and the total absence in legislative history of any intention to authorize force against Syria and Iran – all weigh against any such construction.  Which leaves us with the President’s power under Article II of the Constitution.  

It is certainly true that the President has constitutional authority to act in defense of U.S. facilities and troops overseas without first waiting for Congress to act, a necessary extension of the President’s well settled power to "repel sudden attacks." From this principle, one scholar has suggested that the President may also attack Syrian aircraft (or Iranian drones or any non-ISIS force in Syria) – in the interest of defending U.S.-allied Syrian government rebels.  As the argument goes, the President’s self-defensive authority should be understood to extend to the defense of certain organized third parties (whether a state like Britain or our allied non-state Syrian forces) operating "in close coordination with the U.S. military in a combat setting." In such a setting, our interests are closely enough aligned, and our forces closely enough entangled, that an attack or threatened attack on a third-party ally is effectively the same as an attack on us.

This "third party self-defense" theory of Article II is in one sense quite a bit narrower than the currently prevailing position of the Justice Department Office of Legal Counsel (OLC) – which, under President Obama, took the view in striking Libya without prior congressional authorization in 2011 that the President has authority to use military force on his own so long as an important U.S. interest was at stake, and so long as the degree of contemplated force didn’t actually amount to "war" within the meaning of the Constitution’s "declare war" clause.  Under this OLC view – based in part on OLC's assessment of post-World War II presidential practice – one need not develop any specialized theory of third party self-defense to justify the use of executive power here.  The current President could assert one of several U.S. concerns in Syria as the important interest at stake (say, protecting the interest of regional stability), and so long as the strikes were limited in scope and duration (i.e., less than "war"), all of these counter-Syria actions could be said to fall within the scope of Article II, whether in defense of allies or not.  

Yet there are at least three ways in which this "third party defense" notion may be said to go beyond even the earlier broad OLC conception of presidential power.  First, there is no previous practice in which the President has asserted the interest of defending battlefield allies as such as a justification for authorizing the use of force abroad.  It is surely one of the difficulties with the Obama OLC opinion that it leaves so open-ended the question of what counts as a "national interest" sufficiently important for the President to use force, but if we are to take seriously the notion that past practice matters here, it would seem important to identify some at least analogous illustration on which to rely. Second, again to the extent such practice matters, the case for using force to protect a zone in a foreign country within which our own military might train opposition forces seems vastly less persuasive than the interest in, for instance, ridding the world of the scourge of chemical weapons.  Indeed, the "de-confliction" zone we are now using force to protect is just over the border from Iraq, where we have every right to operate militarily (thanks to Iraqi consent) and, presumably, train anti-ISIL forces all we like.  

Above all, in the 2011 Libya strike (and almost all previous post-World War II operations), the unilateral executive use of force abroad was taken in concert with UN authorities.  Both our downing of the Syrian jet and other recent U.S. strikes appear to be in violation of the UN Charter.  Whether one considers that an Article II problem, an Article VI problem, or simply a violation of international law– the United States’ legal position here is as precarious as it gets. 


Stephen M. Breitstone on Trump's Tax Reform

To the Editor of Tax Note:

Licking their wounds from the healthcare reform debacle, the Trump administration and Republican Congress seem poised to move to comprehensive tax reform, which commentators have suggested may be less controversial. Reforming the tax system without creating a major disruption to our economy may prove to be a surprisingly difficult task. Everyone loves to hate the tax code. But major changes will undoubtedly have unintended consequences — which could turn out to be very bad. While healthcare represents one-sixth of the economy, its size is no doubt dwarfed by our tax system — which aside from borrowing, is how our government pays for just about everything.

The time may be right for comprehensive tax reform. However, certain of the GOP Blueprint proposals could do more harm than good — they are, frankly, misguided. Particularly troubling are proposals to change the taxation of real estate investments.

Harkening back to the 1986 tax reform, the GOP Blueprint purports to broaden the tax base by eliminating deductions and special tax preferences while decreasing rates. In fact, the Blueprint proposals would do exactly the opposite by creating an immediate tax shelter of unprecedented proportions. This would be accomplished by allowing investors to immediately expense newly acquired buildings (but not land). The GOP Blueprint would use immediate expensing to justify eliminating deductions on mortgages, depreciation, and likely section 1031 exchanges. The short-term tax shelter that would result from immediate expensing would be followed by an increase in the effective tax rates on real estate investments, since deductions for mortgage and depreciation would be eliminated as well as section 1031 exchanges, which play a major role in facilitating the real estate market generally.

Ultimately, these changes would almost certainly result in higher rent levels. For multifamily residential owners, to survive they would be forced to increase rents on tenants with modest or low income. As to office and industrial real estate, the rents charged to small businesses would similarly have to rise. As to agricultural real estate, there would be an immediate increase in the effective rate of taxation on these investments, since they would not benefit from immediate expensing but would lose their interest deductions.

The GOP Blueprint purports to take tax planning out of the economic decision-making process, but it would do the exact opposite. These changes would likely overstimulate the real estate industry in the short term by effectively eliminating taxation of these investments (except land) and thus create a bubble. Once the benefit of immediate expensing wears off, the loss of the interest deduction on mortgages would no doubt cause that bubble to burst. Our current system of taxing real estate is much more tax neutral by taxing what is much more reflective of economic income.

Let’s not repeat the mistakes of the 1980s. Aggressive tax incentives were enacted by Congress when Ronald Reagan entered the White House in 1980. At that time, the economy was in the doldrums. Reagan came to office with a mandate to jump-start the economy, and his legislative agenda did just that. Since real estate was in recession, they cut the amortization schedule in half and allowed investors to write off their investment over 15 years. This treatment incentivized capital to flow into real estate investments on a gigantic scale. But it went too far, creating a bubble.

The last comprehensive tax reform passed a bipartisan Congress in 1986. The laudable theme of the Tax Reform Act of 1986 was simplification, base broadening, and the reduction in special tax preferences and so-called “loopholes,” which enabled maximum marginal rates to be reduced from 50 percent to 28 percent. With the passage of the 1986 Act, they corrected the mistake they made in 1980 with real estate by lengthening the depreciation schedule to what we still use today. But the excessive flow of capital into real estate came to an abrupt end. This caused a significant correction and decline in values. This was a major contributing cause of the Savings and Loan crisis, in which thousands of financial institutions failed, demanding a government bailout of more than $125 billion paid for by the taxpayers. In today’s dollars, that would be $281 billion.

Congress now seems poised to repeat the mistakes of the 1980s — perhaps even worse. The GOP Blueprint would enact a much more aggressive tax stimulus than Ronald Reagan’s by allowing buildings to be immediately expensed. Indeed, this may help the GOP with the 2018 mid-term elections. However, it should not go unnoticed that this short-term stimulus will be followed by an effective tax rate increase on these investments that would result from the denial of interest deductions on mortgages — frankly the lifeblood of real estate. This will be coupled with a loss of depreciation deductions and possibly section 1031 exchanges, leaving a tax code in place that would be hostile to real estate investment.

The underlying premise for these fundamental policy changes as stated in the Blueprint is to “reduce tax-induced distortions in investment financing decisions.” Moreover, the Blueprint justifies the elimination of the deduction for interest (coupled with immediate expensing) as a way to avoid a “distortive . . . tax subsidy for debt-financed investment.” In fact, the Blueprint’s proposals would create unprecedented distortions and short-term incentives to make investments whether or not those investments make economic sense. Moreover, denial of interest deductions imposes a penalty on debt financed investments — even those that are not overleveraged. Contrary to the assertions in the Blueprint, in the context of domestically owned real estate held by pass-through entities, the interest deduction does not present an abuse and does not get favored treatment over returns paid on equity. This point is irrefutable.

The Blueprint

As stated, immediate expensing can have a stimulative effect by artificially reducing taxable income when a new investment is purchased, but that short-term benefit has a major cost. Once the up-front deduction has been used, there will be no depreciation deductions and no deduction for interest on debt incurred to finance the investment. At that point, the effective tax rate on income from the real estate investment will be significantly increased. Even though the GOP Blueprint purports to reduce tax rates to a maximum of 33 percent, these real estate investments will be subject to tax at effective rates that could exceed 66 percent or more. This tax increase will probably not be survivable for the overwhelming majority of property owners who rely upon debt to finance their investments. The economic distortions that would result from the GOP Blueprint could be catastrophic.

Commercial real estate values have eclipsed their previous peak in 2007 by 23 percent. Real estate doesn’t need immediate expensing. Immediate expensing can only serve to stimulate imprudent speculation and overinvestment in real estate. The real estate industry and the financial institutions they turn to for financing should be literally screaming in opposition to these changes, which would create an enormous economic distortion and penalty for borrowing. While the Blueprint purports to eliminate tax consequences from the decision as to how to finance an investment, it actually creates a penalty for borrowing. It also undermines the basic economics of these investments by imposing a tax penalty for using leverage — which is the lifeblood for economic growth in the real estate industry. Congress should not attempt to fix what is not broken.

Stephen M. Breitstone
Meltzer, Lippe, Goldstein & Breitstone LLP
Apr. 4, 2017


By Professor David Rudenstine

President Donald J. Trump presents a substantial and immediate threat to the future of the American constitutional order. His words and his conduct as a candidate and as President dangerously assault essential constitutional premises.

All citizens, no matter how they voted in the 2016 presidential election, should acknowledge that grave risks to the nation's governing principles are at hand. But acknowledgment is only the first step and by itself is insufficient. All citizens must assume responsibility to assure that vital checks and balances central to structuring the national government are maintained, that the rule of law is sustained and strengthened, and that the nation's highest aspirations for individual liberty, equality, and dignity are forcefully fortified.

Although it has been many generations since the nation's political order has been as threatened as it is today, President Trump's shattering conduct brings to mind the familiar eighteenth century anecdote concerning Benjamin Franklin. At the close of the Constitutional Convention of 1787, Franklin was asked as he left Independence Hall: “Well Doctor what have we got, a republic or a monarchy.”  Franklin replied, “A republic . . . if you can keep it.” Today it is incumbent upon all Americans to do what each can to preserve and protect the republic.


President Trump won the presidential election, and now that the Republican Party controls the Senate and the House of Representatives, he is in a position to bring about important change through the legislative process. Americans seriously disagree about these changes and are seriously engaged in strenuously promoting their differing perspectives within the framework of the constitutional order.

As important as those policy differences are, what is more worrisome are the fierce and frequent attacks mounted by President Trump and others in his administration on the pillars of the constitutional order. It is not any one or two of the different lines of attack on the constitutional underpinnings that are troubling. Rather it is the frequency and intensity of these assaults that are alarming. The constitutional order is resilient, but it is not immune to irreparable harm.

What follows are examples of President Trump and his administration’s assaults on our constitutional order.

·The President and others in his administration have attacked the legitimacy of the press. Indeed, President Trump has tweeted that the national press is the "enemy of the American People." A society committed to democratic values cannot effectively function without an informed public which in turn requires that the public trust in the reported news. Frequent false charges by the President and others on the traditional sources of news in the United States are dangerous attacks on the democratic fabric of American society.

·The President and others in his administration have attacked the legitimacy of the federal judiciary. Just days ago in what is referred to as the travel ban case, President Trump referred to one federal judge as a “so-called” judge after he enjoined the travel ban. He and others in his administration do not simply disagree with judicial opinions, and then appeal disagreeable rulings, as is the right of the new administration. Instead this administration seeks to intimidate the judiciary and to undermine the public’s confidence in the judiciary. A society committed to democracy must be committed to the rule of law, and the rule of law requires an independent judiciary whose rulings the public respects.

·The President lies repeatedly and his lies undermine the Office of the Presidency and thus the United States.

·President Trump has maintained without a scintilla of evidence that he won the presidential popular vote because he asserts 3 to 5 million fraudulent votes were cast for Hillary Clinton. This claim undermines the entire democratic system by asserting that election outcomes as announced by appropriate election authorities cannot be trusted. Challenging the legitimacy of election outcomes puts at risk the peaceful transfer of political authority. Indeed, Donald Trump did that explicitly before millions of American voters when he refused to state in the last presidential debate with Hillary Clinton that he would accept the outcome of the election.

•As a candidate for the presidency, Donald Trump made statements expressing intolerant and discriminatory attitudes based on race, religion and national origin, and accepted the support of individuals and organizations that promote an agenda of hate, discrimination and bigotry. As President, Mr. Trump has sought to translate these intolerant attitudes into policy by, for example, imposing a travel ban on immigrants, building a wall along the southern United States border, and adopting policies that put at risk thousands upon thousands of individuals who have led law abiding lives in the United States for many years. The President's words and conducts diminish the United States in the eyes of the world, betray the spirit and the letter of American law, and sow the seeds of discord and discrimination across the nation.

·The President made it a signature campaign issue that he would “lock up” Hillary Clinton if he won the election. The threat of locking up political opponents who are defeated in an election surely may intimidate some individuals from running for office, and thus eats away at the future vigor of our political system. And yet President Trump made this threat over and over during his campaign. Moreover, in making this threat, candidate Trump seem not to care one whit that his statements or those of his allies about “locking up” Hillary Clinton compromised her right to a fair trial if criminal charges were ever filed against her.

· By not disclosing his tax returns or divesting himself of his holdings, and by permitting his family to maintain diverse and substantial holdings about which he plainly has substantial knowledge, President Trump has destroyed the ability of the nation to trust that he will discharge his duties as president to further the best interest of the nation’s people as opposed to exercising the vast power of his office to enrich himself or his family. Apart from betraying this trust, President Trump seems almost certainly in violation of the Emolument clause of the constitution. That clause protects the public from the president having a conflict of interest by providing that the President, unless the congress so consents, shall not “accept of any present, Emolument, Office, or Title, of any kind whatsoever, from any King, Prince, or foreign State.” These critical fiscal considerations tear at the assumption that the nation’s highest elected official acts to advance the general welfare of the nation.

·During the 2016 campaign for the presidency, Donald Trump requested that Russians hack the emails of Hillary Clinton and her associates and then disclose those emails to the American public. That scandalous conduct has been followed by numerous news reports that claim that some of Mr. Trump’s close associates – including Michael Flynn who resigned as the National Security Adviser within a month of his appointment -- had direct or indirect contact with Russian representatives both before and after the November election about a variety of matters including the difficulties in Ukraine. There have been further reports that Mr. Trump’s financial holdings are entangled with Russian creditors and investors who in turn may have close ties to Mr. Putin, and that these entanglements make President Trump susceptible to exceptional and inappropriate Russian pressure while he is president. Against this background, Mr. Trump’s repeatedly expressed admiration for Mr. Putin and his frequent urging that the United States aim to have friendlier relations with Russia give rise to troubling suspicions that Mr. Trump is inappropriately beholden to Mr. Putin and his associates such that he will sacrifice the best interest of the United States. Although there are more claims than definitive evidence involved in these entangled allegations, they constitute a threat to the legitimacy of the 2016 election outcome and raise urgent questions as to the ability of President Trump to discharge his presidential duties free of undue pressure or leverage by Mr. Putin and his Russian associates. As a result, these allegations require an independent and special prosecutor free of compromising political oversight to investigate them.

President Trump’s dangerous assault on the pillars of the constitutional order is unrelated to any legitimate legislative agenda he may have for the nation. In fact, the assault has and will likely continue to absorb the nation’s attention to some significant extent, thus ironically impeding the furtherance of President Trump’s legislative agenda. Unfortunately, because President Trump seems determined to pursue his attack on the premises of the governing structure, citizens have no choice but to resist the assault in an effort to protect and preserve the constitutional order.


There is no one way to preserve and protect the constitutional order. Citizens may pose tough questions to their representatives at town hall meetings, call Washington congressional offices to ask questions or to pass along opinions, write letters to newspapers, participate in street protests, organize public panels and small gatherings of friends and neighbors to discuss what can be done, or run for political office. Teachers may study the constitution with their students. Students may organize teach-ins. Lawyers may bring law suits, file amicus briefs with courts, and commence Freedom of Information Requests to secure information the government wishes to keep secret.

America’s political way of life is at stake, and the time to act to protect and preserve it is now.  So, let’s all join hands and insist that the voice of the people not only be loud and heard, but that it be honored.

To help in this worthy endeavor, endorse this Call to Protect the Constitutional Order and pass it on to your friends, your neighbors, and your colleagues. And then take appropriate action.

The three fallacies of the popular vote

By Professor Edward Zelinsky

Via Oxford University Press Blog  In light of Secretary Clinton’s victory in the popular vote, prominent voices call for replacing the Electoral College with a direct, nationwide vote for President. Among the distinguished individuals now urging abolition of the Electoral College are former Attorney General Eric Holder and outgoing Senator Barbara Boxer. However, for three reasons, it is wrong to assume that the popular vote total in this or any other presidential election is the same as the result which would have occurred under a direct, nationwide election for President conducted using uniform national rules. Would Secretary Clinton or President-elect Trump have won in 2016 in a direct, nationwide election? We don’t know.

Abolishing the Electoral College would shift the campaigns’ allocation of their respective resources from close, toss-up states to party strongholds. The Trump campaign productively allotted its candidate’s time and its money to such closely-contested states such as Florida, Michigan, Pennsylvania, and Wisconsin. Without the Electoral College, the Trump campaign would have instead sent its candidate and its funds into Trump strongholds like Tennessee and Indiana to increase his already large vote totals in those states. The Trump campaign would also have devoted resources to upstate New York and inland California, Republican-leaning areas of no consequence under the winner-take-all allocation of their states’ electoral votes. The result would have been a vote pattern different from the one which actually occurred under the Electoral College system in 2016 when campaign resources were channeled to toss-up states.

Embracing this logic, the Trump campaign claims that the President-elect would have prevailed in a direct election since his campaign would have allocated its resources differently under such a system. Perhaps this claim is correct. Perhaps not. We simply do not know how a direct election for President would have come out in 2016 since we did not have such election.

There are two additional reasons that the popular vote under the Electoral College system may not reflect the outcome which would have occurred under a direct vote using uniform national rules: various states today use different voting rules. A direct nationwide election for president would change the incentives for many protest voters who cast their ballots for third-party candidates.

The United States today does not conduct a single presidential election under a nationally uniform set of rules. Rather, there are fifty-one separate elections each administered under particular state-established regulations. Comparing the different state tallies obtained under different rules may not quite be adding together oranges and apples. It is, however, at least adding together oranges and tangerines.

Consider, for example, the different approaches to mail ballots in Oregon and West Virginia. Oregon conducted its entire election by mail ballots and awarded its electoral votes to Secretary Clinton. West Virginia, in contrast, issued a mail ballot to a voter only under more traditional, restrictive circumstances reflecting the voter’s inability to get to the polls.

It is wrong to assume that the popular vote total in this or any other presidential election is the same as the result which would have occurred under a direct, nationwide election for President conducted using uniform national rules.

It is problematic to look at the votes cast under these different rules in Oregon and in West Virginia, and declare that these are the outcomes which would have occurred under a nationally-uniform direct election without the Electoral College. Suppose that West Virginia had this year taken Oregon’s liberal approach to mail ballots. Would this have increased Secretary Clinton’s West Virginia votes by stimulating Clinton supporters who were too discouraged to bother voting in an overwhelming pro-Trump state? Or would more liberal mail voting regulations have brought out relatively more of the pro-Trump electorate in West Virginia?

We don’t know. And since we’ll never know, it is fallacious to compare the actual vote totals of these two (and other) states which used different voting rules.

Moreover, the incentives under the Electoral College are different for many voters who cast protest ballots for third party candidates than the incentives such voters would confront under a direct national election of the President. Under the current system, a Republican unenthusiastic about Mr. Trump could in this fashion comfortably vote for Governor Johnson and the balance of the Republican ticket, confident that his presidential vote was symbolic since his state’s electoral votes were destined to go to Mr. Trump or Secretary Clinton. That same voter would have confronted a different calculation under a direct national vote since his vote might then have affected the outcome.

It is instructive in this context to compare the popular vote total received by President-elect Trump with the aggregate vote simultaneously received nationwide by Republican candidates for the US House of Representatives. While Mr. Trump received roughly two million fewer popular votes than did Secretary Clinton, Republican candidates for the House received in the aggregate approximately three million more votes nationwide than did their Democratic opponents. A substantial share of the additional votes cast for Republican House candidates likely came from individuals who simultaneously voted for Governor Johnson for president and their local Republican candidate for Congress.

Would this have altered the final result in 2016? We don’t know which, again, is why we cannot assume that the popular vote which actually occurred in 2016 is the same as the result which would have resulted under a direct election for President conducted under uniform national rules.

There are thoughtful critics and supporters of the Electoral College. Americans should debate about our Constitution and the institutions it establishes. In that debate, Americans should not succumb to the fallacious assumption that the popular vote under the Electoral College is the same vote which would necessarily occur in a direct national election for President.

We Are All Publicists Now

By Professor Michael Herz

Via RegBlog’s founding in 2011 was an ambitious, creative, and prescient undertaking. It was also very much a sign of the times, reflecting the increasing comfort with—and saturation by—social media throughout society.

Federal agencies, too, were leaping on this bandwagon. In 2010, the Federal Web Managers Council, an interagency group of web managers working to improve the United States governments’ online presence, created a timeline to trace the federal government’s embrace of social media. The first item, somewhat pathetic in retrospect, is from April 1, 2002, when the White House Easter Egg Roll was live-streamed. The next item does not appear for another two years, but the timeline is increasingly crammed with developments in the ensuing years.

Then, in September 2011, the timeline just stops.

The timeline stops not because social media activities came to an end, but because by 2011 it was no longer even moderately notable when an agency used social media.

Clay Shirky, a writer on Internet technologies, once observed that “communications tools don’t get socially interesting until they get technologically boring. . . . It’s when a technology becomes normal, then ubiquitous, and finally so pervasive as to be invisible, that the really profound changes happen.” If we are looking for when federal agencies’ use of social media went from normal to ubiquitous, the abandonment of the timeline suggests that 2011 is not a bad estimate.

What, then, can we make of these five years of social media ubiquity? Now that these tools are “technologically boring,” have they become “socially interesting”?

There are currently an estimated 10,000 federal government social media accounts across dozens of different platforms. (For an impressive array from just a single agency, see the list on the U.S. Environmental Protection Agency’s (EPA) social media page.) For all the theorizing about social media as a dialogic network, fostering feedback and engagement by customers and citizens, agencies overwhelmingly rely on these platforms to push rather than to pull, to get their “story” out there. In other words, these platforms are the tools of modern government public relations.

Governmental publicity has always stirred controversy. As long ago as 1913, Congress prohibited agencies from hiring “publicity experts.” Slightly amended, this provision remains in the U.S. Code to this day. And since 1951, virtually every appropriations measure has provided that “no part of any appropriation contained in this Act shall be used for publicity or propaganda purposes not authorized by the Congress.” This restriction occasionally trips up agencies that seek to engineerpositive media coverage by writing and disseminating pre-packaged news stories.

The most recent dust-up involving the propaganda prohibition concerns EPA. In 2014, EPA undertook an extensive social media campaign to rally public support for a proposed rule to clarify the regulatory definition of “waters of the United States.” Among other techniques, the agency used the aggregating tool Thunderclap to coordinate hundreds of simultaneous tweets of a text composed by EPA that read: “Clean water is important to me. I support EPA’s efforts to protect it for my health, my family, and my community.” The U.S. Government Accountability Office (GAO) concluded that this violated the prohibition on propaganda because EPA’s role in originating the message was hidden—the millions of followers who received the Thunderclap message did not know the tweet originated with EPA.

The only legal penalty for violating the appropriations rider is for the offending agency to return funds to the treasury. The greater consequence, of course, is the public and political relations harm from being labeled a distributor of “covert propaganda”—that being the only sort of propaganda the GAO understands the prohibition to reach.

As a result, the prohibition on agency publicity or propaganda is used primarily to arm agency critics with ammunition for anti-agency publicity and propaganda.

And that is just how it was used in this instance. GAO’s conclusion played directly into what EPA’s harshest critics believe about the agency. For example, U.S. Senator James Inhofe (R-Okla.), the Chairman of the Senate Committee on Environment & Public Worksstated that the report confirmed what he had “long suspected, that EPA will go to extreme lengths and even violate the law to promote its activist environmental agenda.” The U.S. Chamber of Commerce lamented that “‘covert propaganda’ is something you’d expect from a foreign spy agency not from EPA.” In fact, covert propaganda is exactly what the Chamber, and other EPA opponents, expect from the agency. EPA’s critics have long attacked the agency for spewing misinformation, saying that “EPA” stands for “Environmental Propaganda Agency.”

The alleged illegality—EPA insists that no violation occurred—is a sideshow. However, the overall setting, like the trend of which it is a part, represents a fundamental shift in how government agencies interact with the public.

First, agencies indisputably are engaged in publicity and propaganda. Anyone who follows a federal agency on Twitter, Instagram, YouTube, or Facebook, or who has read an agency blog or visited an agency website, would be rather surprised to learn that agencies are not permitted to engage in “publicity” or “propaganda.” What else are social media tools for? No need to hire a publicist; in the social media age, that is what all of us are.

Second, this phenomenon does not, as some critics claim, amount to brainwashing the American public. Counter-speech on the Internet is robust. That is what it means for all of us to be publicists. Indeed, the government is at a disadvantage in social media battles. The material that goes viral is creative and, even more important, subversive. Government has a hard time being creative, and it simply cannot be subversive. For example, the Transportation Security Administration (TSA) currently has 90 videos on YouTube. As government videos go, these have an enormous number of views. But their popularity is dwarfed by that of anti-TSA videos. Inescapably, more people will watch “Another TSA Video To Make Your Blood Boil” (5 million) than will watch “Why Shoes on the Belt?” (27,000).

Finally, the most striking aspect of the EPA’s waters of the United States social media campaign was that it occurred in the context of a pending rulemaking. Since notice-and-comment rulemaking moved online, observers have worried that this historically technocratic process would become a plebiscite. While commenters and government websites alike admonish against such a shift, a built-in pressure in that direction results simply from the use of the technologies of mass participation. Problematically, EPA encouraged the mistaken view, too evident already on some NGO websites, that commenting is not about providing information or argument, but simply about showing “support”—a petition or referendum in which numbers trump all other considerations.

Agencies will continue to refine their social media presence to convince the public of the value of the agencies’ work. These efforts may be indispensable measures to inform the public and so ensure a functioning democracy. Or they may be pathological artifacts of the permanent campaign, distracting at best and deceptive at worst. Whichever they are, the last five years have shown that the old issues—agency expertise, discretion, and democratic deficit—are now inextricably bound up with use of the new technologies.

This post is part of RegBlog’s sixteen-part series, RegBlog@5.

Horrible Choices Don't Make Us More Secure

By Professor David Rudenstine, Guest Columnist

January 29, 2016 via Orlando Sentinel - After the attacks in Paris and San Bernardino, Calif., late last year, one might have a powerful inclination to give a green light to government surveillance hoping that such surveillance would detect terrorist plots before more people are murdered. That inclination would be based on the assumption that government surveillance programs make us safe.

Unfortunately, no one outside the government can say that surveillance programs have actually helped disrupt terrorists because National Security Agency programs are classified, including how law-enforcement officials use NSA surveillance reports.

But still, those inside the government claim that surveillance programs are essential to protecting Americans at home and abroad. That was the position of NSA Director General Keith Alexander, who stated that unauthorized disclosure of the telephone metadata collection program in 2013 "caused 'significant and irreversible damage to our nation.'"

Many of us might feel a powerful inclination to trust Alexander. After all, he is trusted by the most senior of government officers to protect Americans.

But history teaches caution about granting government officials a blank check of trust. Recall President Truman's seizure of steel mills in 1952 to avert a labor strike, claiming it was critical to protecting the nation's steel production because of its importance in producing armaments for U.S. troops then fighting in Korea. After the Supreme Court ruled the seizure unconstitutional, a labor-union strike ensued, but there was no steel shortage.

Read more of Professor Rudenstine's op-ed in the Orlando Sentinel. 

A Call for Unity: A Muslim American Perspective on Current Events

By Suleman Malik, 3L, Cardozo School of Law

As you know, Republican presidential candidate Donald Trump recently called for a ban on Muslims from entering the United States.  As a Muslim immigrant, I’m deeply concerned about Islam’s perception in America.  And as an American, I’m disappointed by how many people have supported such a policy so contrary to our values.

Yet, I remain hopeful.  I believe we can continue to strengthen America.  But, we can only do so together. 

First, the Muslim community itself needs to accept responsibility and denounce terrorist attacks committed in the name of Islam, via outreach or an organized introduction of programs.  There needs to be a unified approach to not only combatting terrorism but also “Islamophobia.” 

Second, at the same time, we all need to understand this simple truth: Islam does not equal terrorism.  In fact, terrorists that commit these heinous acts are not members of the Islamic faith.  Instead, terrorists signify and embody an agenda that is contradictory to the core principles of Islam.

Third, we need to continue this dialogue – at our workplaces, inside our classrooms, and even at home.  It is through civic discussion that we can brainstorm, enact, and enforce comprehensive solutions or legislation.  Otherwise, if we fall victim to Mr. Trump’s ideology, then we too may endanger our national security.

Recently, I was pleased to be part of a focus group of Muslims Americans on CBS.  We discussed a number of issues in light of Donald Trump’s comments and the terrorist attacks in Paris and San Bernardino.  I’m grateful I had an opportunity to relay my remarks and I hope I can continue to contribute to this widely debated topic.

Suleman Malik is a third-year law student at Cardozo Law School and a graduate of Emory University.  He is a Law Clerk at Newman Ferrara, LLP practicing complex commercial and civil rights litigation.  He currently serves as the Executive Editor of the Cardozo Journal of Conflict Resolution, in which he has published an article entitled, “Where Do We Fight?: A Way to Resolve the Conflict Between a Forum Selection Clause and FINRA Arbitration Rule 12200” (17 Cardozo J. Conflict Resol. 215). 

Will the internet of things result in predictable people?

The question of our age might turn out to be the reverse of the Turing test: will people become programmable like machines?

By Professor Brett Frischmann

Via The Guardian- We’re told that eventually sensors will be everywhere. Not just in phones, tablets, and laptops. Not just in the wearables attached to our bodies. Not just at home or in the workplace. Sensors will be implanted in nearly everything imaginable and they will be networked, tightly connected, and looking after us 24-7-365.

So, brace yourself. All the time, you’ll be be monitored and receive fine-grained, hyper-personalised services. That’s the corporate vision encapsulated by the increasingly popular phrase “internet of everything”.

Techno-optimists believe the new world will be better than our current one because it will be “smarter”. They’re fond of saying that if things work according to plan, resources will be allocated more efficiently. Smart grids, for example, will reduce sizeable waste and needless consumption. And, of course, on an individual level, service providers will deliver us the goods and services that we supposedly want more readily and cheaply by capitalising on big data and automation.

While this may seem like a desirable field of dreams, concern has been raised about privacy, security, centralised control, excessive paternalism, and lock-in business models. Fundamentally, though, there’s a more important issue to consider. In order for seamlessly integrated devices to minimise transaction costs, the leash connecting us to the internet needs to tighten. Sure, the dystopian vision of The Matrix won’t be created. But even though we won’t become human batteries that literally power machines, we’ll still be fueling them as perpetual sources of data that they’re programmed to extract, analyse, share, and act upon. What this means for us is hardly ever examined. We’d better start thinking long and hard about what it means for human beings to lose the ability – practically speaking – to go offline.

Digital tethering in an engineered world

The key issue is techno-social engineering. Techno-social engineering involves designing and using technological and social tools to construct, influence, shape, manipulate, nudge, or otherwise design human beings. While “engineering” sounds ominous, it isn’t inherently bad. Without techno-social engineering, cultures couldn’t coordinate behaviour, develop trust, or enforce justice. Since techno-social engineering is inevitable, it’s easy to get used to the forms that develop and forget that alternatives are possible and worth fighting for.

Think about the world we currently live in. While we benefit immensely from the internet, we’ve become digital dependents who feel tethered to it and regularly pay the steep price of constant connectivity disrupting older personal, social, and professional norms. The old advice of “go offline if you’re unhappy” rings hollow when others constantly demand our attention and not providing it conflicts with widespread expectations that being productive and responsible means being online. Amongst other things, being attached to a digital umbilical cord means daily lives under surveillance and showered with laments about unachievable work-life balance, fear of missing out, distracted parents, and screens being easier to talk to than people.

But the problem runs much deeper, and turns out to be more than the sum of its parts. Georgetown professor Julie Cohen gives the right diagnosis by characterising citizens as losing the “breathing room” necessary to meaningfully pursue activities that cultivate self-development – activities that are separated from observation, external judgment, expectations, scripts and plans. Without freedom to experiment, we run the risk of others exerting too much power over us.

We enjoy this breathing room throughout our lives. We get it in special places, like homes and hiking trails. We cherish it in the in-between spaces, like the walk home from the train or drive to soccer practice. But none of these locations are sacred. Rather, as the invasive pings of our smartphones demonstrate, they’re always at risk.

Find, gather, serve: the digital self

For the moment, we console ourselves with limited governance strategies. We turn notices off. We leave devices behind. We taketechnology Sabbaths and digital detoxes.

Smart homes of the future might follow suit. Perhaps they’ll be programmed to protect some forms of solitude by automating attention-killing tasks. But it’s hard to place much stock in any of this when neither tool nor technique effectively bridges the gap between individual decisions that are deemed counter-cultural and widespread expectations about online commitments.

To make matters worse, it’s difficult to imagine that new forms of pervasive monitoring won’t be invented. And if they are, folks will be told that that life gets better by using them. Take, for example, David Rose, author of Enchanted Objects: Design, Human Desire, and the Internet of Things. He pines for the day when we can stop pestering our spouses and children with questions about how they’re doing, and instead look to kitchens lined with “enchanted walls” that “display, through lines of coloured light, the trends and patterns in your loved one’s mood”. Ironically, minimising human interaction in the always-on environment with automated reports eliminates our freedom to be off.

Entrepreneurial visions like this will profoundly influence the world we’re building. Writer and activist Cory Doctorow observes: “A lot of our internet of things models proceed from the idea that a human emits a beacon and you gather as much information as you can – often in a very adversarial way – about that human, and then you make predictions about what that human wants, and then you alert them.” Concerned about the persistent public exposure that these models rely on, Doctorow identifies an alternative, a localised “device ecosystem” that would allow internet of things users to only “voluntarily” share information “for your own benefit”.

Doctorow is right. We need to think about alternatives. And in principle, he’s got a fine idea. But at best, it’s a partial fix.

The find, gather, and serve models Doctorow justifiably critiques hide the deeper problem of pervasive techno-social engineering, and so his solution doesn’t address it. Our willingness to volunteer information, even for what we perceive to be for our own benefit, is contingent and can be engineered. Over a decade ago, Facebook aimed to shape our privacy preferences, and as we’ve seen, the company has been incredibly successful. We’ve become active participants, often for fleeting and superficial bits of attention that satiate our craving to be meaningful. And Facebook is just the tip of the iceberg. Throughout the current online environment, consumers are pressured to “choose” corporate services that directly manipulate them or sell their data to manipulative companies.

Intense manipulation in the programmable world

Manipulation is thus the other big techno-social engineering issue that needs to be confronted. The power of traditional mass media – think advertisers and news organisations – to shape culture and public opinion is widely understood. But it seems like child’s play in comparison what we’ve seen on the internet and in visions of the internet of things.

For good reason, there’s already plenty of anxiety about precise and customised forms of manipulation. Marketers want to harvest our big data trail to create behaviourally-targeted advertising that exploits cognitive biases and gets absorbed during moments when algorithms predict we’ll experience heightened vulnerability. Communication tools are being rolled out that perform deep data dives, create psychological profiles, and recommend exactly how we should communicate with one another to get what we want. Facebook has shown it’s ready and willing to non-transparently tweak our emotions – and co-opt us into their agenda – just so we find a product engaging. Given just how much nudging is occurring, it’s no surprise that folks are worried about the potential for elections to be determined by “digital gerrymandering”.

The internet of things is envisioned to be a “programmable world” where the scale, scope, and power of these tools is amplified as we become increasingly predictable: more data about us, more data about our neighbours, and thus more ways to shape our collective beliefs, preferences, attitudes and outlooks. Alan Turing wondered if machines could be human-like, and recently that topic’s been getting a lot of attention. But perhaps a more important question is a reverse Turing test: can humans become machine-like and pervasively programmable.


Evan Selinger is an associate professor of philosophy at Rochester Institute of Technology, where he also is the head of research communications, community and ethics at the Media, Arts, Games, Interaction and Creativity (MAGIC) Center. Twitter: @evanselinger.

Brett Frischmann is a professor and co-director of the Intellectual Property and Information Law Program at Cardozo Law School. Twitter: @BrettFrischman.

They are both co-authors of Being Human in the 21st Century (Cambridge University Press, 2017), a book that critically examines why there’s deep disagreement about technology eroding our humanity and offers new theoretical tools for improving how we talk about and analyze dehumanization.