A CALL TO PROTECT THE CONSTITUTIONAL ORDER

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.

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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.

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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.org 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.

Biography:
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.