Digifesto

September 9, 2018

Brazilian Jiu Jitsu (BJJ) and the sociology of martial knowledge

Maybe 15 months ago, I started training in Brazilian Jiu Jitsu (BJJ), a martial art that focuses on grappling and ground-fighting. Matches are won through points based on position (e.g., “mount”, where you are sitting on somebody else) and through submission, when a player taps out due to hyperextension under a joint lock or asphyxiation by choking. I recommend it heartily to anybody as a fascinating, smart workout that also has a vibrant and supportive community around it.

One of the impressive aspects of BJJ, which differentiates it from many other martial arts, is its emphasis on live drilling and sparring (“rolling”), which can offer a third or more of a training session. In the context of sparring, there is opportunity for experimentation and rapid feedback about technique. In addition to being good fun and practice, regular sparring continually reaffirms the hierarchical ranking of skill. As in some other martial arts, rank is awarded as different colored “belts”–white, blue, purple, brown, black. Intermediary progress is given as “stripes” on the belt. White belts can spar with higher belts; more often than not, when they do so they get submitted.

BJJ also has tournaments, which allow players from different dojos to compete against each other. I attended my first tournament in August and thought it was a great experience. There is nothing like meeting a stranger for the first time and then engage them in single combat to kindle a profound respect for the value of sportsmanship. Off the mat, I’ve had some of the most courteous encounters with anybody I have ever met in New York City.

At tournaments, hundreds of contestants are divided into brackets. The brackets are determined by belt (white, blue, etc.), weight (up to 155 lbs, up to 170 lbs, etc.), sex (men and women), and age (kids age groups, adult, 30+ adult). There is an “absolute” bracket for those who would rise above the division of weight classes. There are “gi” and “no gi” variants of BJJ; the former requires wearing special uniform of jacket and pants, which are used in many techniques.

Overall, it is an efficient system for training a skill.

The few readers of this blog will recall that for some time I studied sociology of science and engineering, especially through the lens of Bourdieu’s Science of Science and Reflexivity. This was in turn a reaction to a somewhat startling exposure to sociology of science and education, and intellectual encounter that I never intended to have. I have been interested for a long time in the foundations of science. It was a rude shock, and one that I mostly regret, to have gone to grad school to become a better data scientist and find myself having to engage with the work of Bruno Latour. I did not know how to respond intellectually to the attack on scientific legitimacy on the basis that its self-understanding is insufficiently sociological until encountering Bourdieu, who refuted the Latourian critique and provides a clear-sighted view of how social structure under-girds scientific objectivity, when it works. Better was my encounter with Jean Lave, who introduced me to more phenomenological methods for understanding education through her class and works (Chaiklin and Lave, 1996). This made me more aware of the role of apprenticeship as well as the nuances of culture, framing, context, and purpose in education. Had I not encountered this work, I would likely never have found my way to Contextual Integrity, which draws more abstract themes about privacy from such subtle observations.

Now it’s impossible for me to do something as productive and enjoyable as BJJ without considering it through these kinds of lenses. One day I would like to do more formal work along these lines, but as has been my habit I have a few notes to jot down at the moment.

The first point, which is a minor one, is that there is something objectively known by experienced BJJ players, and that this knowledge is quintessentially grounded in intersubjective experience. The sparring encounter is the site at which technique is tested and knowledge is confirmed. Sparring simulates conditions of a fight for survival; indeed, if a choke is allowed to progress, a combatant can lose consciousness on the mat. This recalls Hegel’s observation that it is in single combat that a human being is forced to see the limits of their own solipsism. When the Other can kill you, that is an Other that you must see as, in some sense, equivalent in metaphysical status to oneself. This is a sadly forgotten truth in almost every formal academic environment I’ve found myself in, and that, I would argue, is why there is so much bullshit in academia. But now I digress.

The second point, which is perhaps more significant, is that BJJ has figured out how to be an inclusive field of knowledge despite the pervasive and ongoing politics of what I have called in another post body agonism. We are at a point where political conflict in the United States and elsewhere seems to be at root about the fact that people have different kinds of bodies, and these differences are upsetting for liberalism. How can we have functioning liberal society when, for example, some people have male bodies and other people have female bodies? It’s an absurd question, perhaps, but nevertheless it seems to be the question of the day. It is certainly a question that plagues academic politics.

BJJ provides a wealth of interesting case studies in how to deal productively with body agonism. BJJ is an unarmed martial art. The fact that there are different body types is an instrinsic aspect of the sport. Interestingly, in the dojo practices I’ve seen, trainings are co-ed and all body types (e.g., weight classes) train together. This leads to a dynamic and irregular practice environment that perhaps is better for teaching BJJ as a practical form of self-defense. Anecdotally, self-defense is an important motivation for why especially women are interested in BJJ, and in the context of a gym, sparring with men is a way to safely gain practical skill in defending against male assailants. On the other hand, as far as ranking progress is concerned, different bodies are considered in relation to other similar bodies through the tournament bracket system. While I know a badass 40-year old who submitted two college kids in the last tournament, that was extra. For the purposes of measuring my improvement in the discipline, I will be in the 30+ men’s bracket, compared with other guys approximately my weight. The general sense within the community is that progress in BJJ is a function of time spent practicing (something like the mantra that it takes 10,000 hours to master something), not any other intrinsic talent. Some people who are more dedicated to their training advance faster, and others advance slower.

Training in BJJ has been a positive experience for me, and I often wonder whether other social systems could be more like BJJ. There are important lessons to be learned from it, as it is a mental discipline, full of subtlety and intellectual play, in its own right.

References

Bourdieu, Pierre. Science of science and reflexivity. Polity, 2004.

Chaiklin, Seth, and Jean Lave, eds. Understanding practice: Perspectives on activity and context. Cambridge University Press, 1996.

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September 7, 2018

Note on Austin’s “Cyber Policy in China”: on the emphasis on ‘ethics’

I’ve had recommended to me Greg Austin’s “Cyber Policy in China” (2014) as a good, recent work. I am not sure what I was expecting–something about facts and numbers, how companies are being regulated, etc. Just looking at the preface, it looks like this book is about something else.

The preface frames the book in the discourse, beginning in the 20th century, about the “information society”. It explicitly mentions the UN’s World Summit on the Information Society (WSIS) as a touchstone of international consensus about what the information society is, as society “where everyone can create, access, utilise and share information and knowledge’ to ‘achieve their full potential’ in ‘improving their quality of life’. It is ‘people-centered’.

In Chinese, the word for information society is xinxi shehui (Please forgive me: I’ve got little to know understanding of the Chinese language and that includes not knowing how to put the appropriate diacritics into transliterations of Chinese terms.) It is related to a term “informatization” (xinxihua) that is compared to industrialization. It means the historical process by which information technology is fully used, information resources are developed and utilized, the exchange of information and knowledge sharing are promoted, the quality of economic growth is improved, and the transformation of economic and social development is promoted”. Austin’s interesting point is that this is “less people-centered than the UN vision and more in the mould of the materialist and technocratic traditions that Chinese Communists have preferred.”

This is an interesting statement on the difference between policy articulations by the United Nations and the CCP. It does not come as a surprise.

What did come as a surprise is how Austin chooses to orient his book.

On the assumption that outcomes in the information society are ethically determined, the analytical framework used in the book revolves around ideal policy values for achieving an advanced information society. This framework is derived from a study of ethics. Thus, the analysis is not presented as a work of social science (be that political science, industry policy or strategic studies). It is more an effort to situate the values of China’s leaders within an ethical framework implied by their acceptance of the ambition to become and advanced information society.

This comes as a surprise to me because what I was expected from a book titled “Cyber Policy in China” is really something more like industry policy or strategic studies. I was not ready for, and am frankly a bit disappointed by, the idea that this is really a work of applied philosophy.

Why? I do love philosophy as a discipline and have studied it carefully for many years. I’ve written and published about ethics and technological design. But my conclusion after so much study is that “the assumption that outcomes in the information society are ethically determined” is totally incorrect. I have been situated for some time in discussions of “technology ethics” and my main conclusion from them is that (a) “ethics” in this space are more often than not an attempt to universalize what are more narrow political and economic interests, and that (b) “ethics” are constantly getting compromised by economic motivations as well as the mundane difficulty of getting information technology to work as it is intended to in a narrow, functionally defined way. The real world is much bigger and more complex than any particular ethical lens can take in. Attempt to define technological change in terms of “ethics” are almost always a political maneuver, for good or for ill, of some kind that is reducing the real complexity of technological development into a soundbite. A true ethical analysis of cyber policy would need to address industrial policy and strategic aspects, as this is what drives the “cyber” part of it.

The irony is that there is something terribly un-emic about this approach. By Austin’s own admission, the CCP cyber policy is motivated by material concerns about the distribution of technology and economic growth. Austin could have approached China’s cyber policy in the technocratic terms they see themselves in. But instead Austin’s approach is “human-centered”, with a focus on leaders and their values. I already doubt the research on anthropological grounds because of the distance between the researcher and the subjects.

So I’m not sure what to do about this book. The preface makes it sound like it belongs to a genre of scholarship that reads well, and maybe does important ideological translation work, but does provide something like scientific knowledge of China’s cyber policy, which is what I’m most interested in. Perhaps I should move on, or take other recommendations for reading on this topic.

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September 3, 2018

How trade protection can increase labor wages (the Stolper-Samuelson theorem)

I’m continuing a look into trade policy 8/08/30/trade-policy-and-income-distribution-effects/”>using Corden’s (1997) book on the topic.

Picking up where the last post left off, I’m operating on the assumption that any reader is familiar with the arguments for free trade that are an extension of those arguments of laissez-faire markets. I will assume that these arguments are true as far as they go: that the economy grows with free trade, that tariffs create a dead weight loss, that subsidies are expensive, but that both tariffs and subsidies do shift the market towards imports.

The question raised by Corden is why, despite its deleterious effects on the economy as a whole, protectionism enjoys political support by some sectors of the economy. He hints, earlier in Chapter 5, that this may be due to income distribution effects. He clarifies this with reference to an answer to this question that was given as early as 1941 by Stolper and Samuelson; their result is now celebrated as the Stolper-Samuelson theorem.

The mathematics of the theorem can be read in many places. Like any economic model, it depends on some assumptions that may or may not be the case. Its main advantage is that it articulates how it is possible for protectionism to benefit a class of the population, and not just in relative but in absolute terms. It does this by modeling the returns to different factors of production, which classically have been labor, land, and capital.

Roughly, the argument goes like this. Suppose and economy has two commodities, one for import and one for export. Suppose that the imported good is produced with a higher labor to land ratio than the export good. Suppose a protectionist policy increases the amount of the import good produced relative to the export good. Then the return on labor will increase (because more labor is used in supply), and the return on land will decrease (because less land is used in supply). Wages will increase and rent on land will decrease.

These breakdowns of the economy into “factors of production” feels very old school. You rarely read economists discuss the economy in these terms now, which is itself interesting. One reason why (and I am only speculating here) is that these models clarify how laborers, land-owners, and capital-owners have different political interests in economic intervention, and that can lead to the kind of thinking that was flushed out of the American academy during the McCarthy era. Another reason may be that “capital” has changed meaning from being about ownership of machine goods into being about having liquid funds available for financial investment.

I’m interested in these kinds of models today partly because I’m interested in the political interests in various policies, and also because I’m interested in particular in the economics of supply chain logistics. The “factors of production” approach is a crude way to model the ‘supply chain’ in a broad sense, but one that has proven to be an effective source of insights in the past.

References

Corden, W. Max. “Trade policy and economic welfare.” OUP Catalogue (1997).

Stolper, Wolfgang F., and Paul A. Samuelson. “Protection and real wages.” The Review of Economic Studies 9.1 (1941): 58-73.

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August 30, 2018

trade policy and income distribution effects

And now for something completely different

I am going to start researching trade policy, meaning policies around trade between different countries; imports and exports. Why?

It is politically relevant in the U.S. today.
It is a key component to national cybersecurity strategy, both defensive and offensive, which hinges in many cases on supply chain issues.
It maybe ought to be a component of national tech regulation and privacy policy, if e-commerce is seen as a trade activity. (This could be see as ‘cybersecurity’ policy, more broadly writ).
Formal models from trade policy may be informative in other domains as well.

In general, years of life experience and study have taught me that economics, however much it is maligned, is a wise and fundamental social science without which any other understanding of politics and society is incomplete, especially when considering the role of technology in society.

Plenty of good reasons! Onward!

As a starting point, I’m working through Max Corden’s Trade policy and social welfare (1997), which appears to be a well regarded text on the subject. In it, he sets out to describe a normative theory of trade policy. Here are two notable points based on a first perusal.

1. (from Chapter 1, “Introduction”) Corden identifies three “stages of thought” about trade policy. The first is the discovery of the benefits of free trade with the great original economists Adam Smith and David Ricardo. Here, the new appreciation of free trade was simultaneous with the new appreciation of the free market in general. “Indeed, the case for free trade was really a special case of the argument for laissez-faire.”

In the second phase, laissez-faire policies came into question. These policies may not lead to full employment, and the income distribution effects (which Corden takes seriously throughout the book, by the way) may not be desirable. Parallel to this, the argument for free trade was challenged. Some of these challenges were endorsed by John Stuart Mill. One argument is that tariffs might be necessary to protect “infant industries”.

As time went on, the favorability of free trade more or less tracked the favorability of laissez-faire. Both were popular in Western Europe and failed to get traction in most other countries (almost all of which were ‘developing’).

Corden traces the third stage of thought to Meade’s (1955) Trade and welfare. “In the third stage the link between the case for free trade and the case for laissez-faire was broken.“. The normative case for free trade, in this stage, did not depend on a normative case for laissez-faire, but existed despite normative reasons for government intervention in the economy. The point made in this approach, called the theory of domestic distortions, is that it is generally better for the kinds of government intervention made to solve domestic problems to be domestic interventions, not trade interventions.

This third stage came with a much more sophisticated toolkit for comparing the effects of different kinds of policies, which is the subject of exposition for a large part of Corden’s book.

2. (from Chapter 5, “Protection and Income Distribution) Corden devotes at least one whole chapter to an aspect of the trade policy discussion that is very rarely addressed in, say, the mainstream business press. This is the fact that trade policy can have an effect on internal income distribution, and that this has been throughout history a major source of the political momentum for protectionist policies. This explains why the domestic politics of protectionism and free trade can be so heated and are really often independent from arguments about the effect of trade policy on the economy as a whole, which, it must be said, few people realize they have a real stake in.

Corden’s examples involve the creation of fledgling industries under the conditions of war, which often cut off foreign supplies. When the war ends, those businesses that flourished during war exert political pressure to protect themselves from erosion from market forces. “Thus the Napoleonic Wars cut off supplies of corn (wheat) to Britain from the Continent and led to expansion of acreage and higher prices of corn. When the war was over, the Corn Law of 1815 was designed to maintain prices, with an import prohibition as long as the domestic price was below a certain level.” It goes almost without saying that this served the interests of a section of the community, the domestic corn farmers, and not of others. This is what Corden means by an “income distribution effect”.

“Any history book will show that these income distribution effects are the very stuff of politics. The great free trade versus protection controversies of the nineteenth century in Great Britain and in the United States brought out the conflicting interests of different sections of the community. It was the debate about the effects of the Corn Laws which really stimulated the beginnings of the modern theory of international trade.”

Extending this argument a bit, one might say that a major reason why economics gets such a bad rap as a social science is that nobody really cares about Pareto optimality except for those sections of the economy that are well served by a policy that can be justified as being Pareto optimal (in practice, this would seem to be correlated with how much somebody has invested in mutual funds, as these track economic growth). The “stuff of politics” is people using political institutions to change their income outcomes, and the potential for this makes trade policy a very divisive topic.

Implication for future research:

The two key takeaways for trade policy in cybersecurity are:

1) The trade policy discussion need not remain within the narrow frame of free trade versus protectionism, but rather a more nuanced set of policy analysis tools should be brought to bear on the problem, and

2) An outcome of these policy analyses should be the identification not just of total effects on the economy, or security posture, or what have you, but on the particular effects on different sections of the economy and population.

References

Corden, W. Max. “Trade policy and economic welfare.” OUP Catalogue (1997).

Meade, James Edward. Trade and welfare. Vol. 2. Oxford University Press, 1955.

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August 11, 2018

“the politicization of the social” and “politics of identity” in Omi and Winant, Cha. 6

A confusing debate in my corner of the intellectual Internet is about (a) whether the progressive left has a coherent intellectual stance that can be articulated, (b) what to call this stance, (c) whether the right-wing critics of this stance have the intellectual credentials to refer to it and thereby land any kind of rhetorical punch. What may be true is that both “sides” reflect social movements more than they reflect coherent philosophies as such, and so trying to bridge between them intellectually is fruitless.

Happily, reading through Omi and Winant, which among other things outlines a history of what I think of as the progressive left, or the “social justice”, “identity politics” movement in the United States. They address this in their Chapter 6: “The Great Transformation”. They use “the Great Transformation” to refer to “racial upsurges” in the 1950’s and 1960’s.

They are, as far as I can tell, the only people who ever use “The Great Transformation” to refer to this period. I don’t think it is going to stick. They name it this because they see this period as a great victorious period for democracy in the United States. Omi and Winant refer to previous periods in the United States as “racial despotism”, meaning that the state was actively treating nonwhites as second class citizens and preventing them from engaging in democracy in a real way. “Racial democracy”, which would involve true integration across race lines, is an ideal future or political trajectory that was approached during the Great Transformation but not realized fully.

The story of the civil rights movements in the mid-20th century are textbook material and I won’t repeat Omi and Winant’s account, which is interesting for a lot of reasons. One reason why it is interesting is how explicitly influenced by Gramsci their analysis is. As the “despotic” elements of United States power structures fade, the racial order is maintained less by coercion and more by consent. A power disparity in social order maintained by consent is a hegemony, in Gramscian theory.

They explain the Great Transformation as being due to two factors. One was the decline of the ethnicity paradigm of race, which had perhaps naively assumed that racial conflicts could be resolved through assimilation and recognition of ethnic differences without addressing the politically entrenched mechanisms of racial stratification.

The other factor was the rise of new social movements characterized by, in alliance with second-wave feminism, the politicization of the social, whereby social identity and demographic categories were made part of the public political discourse, rather than something private. This is the birth of “politics of identity”, or “identity politics”, for short. These were the original social justice warriors. And they attained some real political victories.

The reason why these social movements are not exactly normalized today is that there was a conservative reaction to resist changes in the 70’s. The way Omi and Winant tell it, the “colorblind ideology” of the early 00’s was culmination of a kind of political truce between “racial despotism” and “racial democracy”–a “racial hegemony”. Gilman has called this “racial liberalism”.

So what does this mean for identity politics today? It means it has its roots in political activism which was once very radical. It really is influenced by Marxism, as these movements were. It means that its co-option by the right is not actually new, as “reverse racism” was one of the inventions of the groups that originally resisted the Civil Rights movement in the 70’s. What’s new is the crisis of hegemony, not the constituent political elements that were its polar extremes, which have been around for decades.

What it also means is that identity politics has been, from its start, a tool for political mobilization. It is not a philosophy of knowledge or about how to live the good life or a world view in a richer sense. It serves a particular instrumental purpose. Omi and Winant talk about the politics of identity is “attractive”, that it is a contagion. These are positive terms for them; they are impressed at how anti-racism spreads. These days I am often referred to Phillips’ report, “The Oxygen of Amplification”, which is about preventing the spread of extremist views by reducing the amount of reporting on them in ‘disgust’. It must be fair to point out that identity politics as a left-wing innovation were at one point an “extremist” view, and that proponents of that view do use media effectively to spread it. This is just how media-based organizing tactics work, now.

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August 7, 2018

Racial projects and racism (Omi and Winant, 2014; Jeong case study)

Following up on earlier posts on Omi and Winant, I’ve gotten to the part where they discuss racial projects and racism.

Because I use Twitter, I have not been able to avoid the discussion of Sarah Jeong’s tweets. I think it provides a useful case study in Omi and Winant’s terminology. I am not a journalist or particularly with-it person, so I have encountered this media event mainly through articles about it. Here are some.

N.B. Sep. 17 2020 – These informal notes were part of the process of writing “Racial categories in machine learning”, with Bruce Haynes.

To recap, for Omi and Winant, race is a “master category” of social organization, but nevertheless one that is unstable and politically contested. The continuity of racial classification is due to a historical, mutually reinforcing process that includes both social structures that control the distribution of resources and social meanings and identities that have been acquired by properties of people’s bodies. The fact that race is sustained through this historical and semiotically rich structuration (to adopt a term from Giddens), means that

“To identify an individual or group racially is to locate them within a socially and historically demarcated set of demographic and cultural boundaries, state activities, “life-chances”, and tropes of identity/difference/(in)equality.

“We cannot understand how racial representations set up patterns of residential segregation, for example, without considering how segregation reciprocally shapes and reinforces the meaning of race itself.”

This is totally plausible. Identifying the way that racial classification depends on a relationship between meaning and social structure opens the possibility of human political agency in the (re)definition of race. Omi and Winant’s term for these racial acts is racial projects.

A racial project is simultaneously an interpretation, representation, or explanation of racial identities and meanings, and an effort to organize and distribute resources (economic, political, cultural) along particular racial lines.

… Racial projects connect the meaning of race in discourse and ideology with the way that social structures are racially organized.

“Racial project” is a broad category that can include both large state and institutional interventions and individual actions, “even the decision to wear dreadlocks”. What makes them racial projects is how they reflect and respond to broader patterns of race, whether to reproduce it or to subvert it. Prevailing stereotypes are one of the main ways we can “read” the racial meanings of society, and so the perpetuation of subversion of stereotypes is a form of “racial project”. Racial projects are often in contest with each other; the racial formation process is the interaction and accumulation of these projects.

“Racial project” is a useful category partly because it is key to Omi and Winant’s definition of racism. They acknowledge that the term itself is subject to “enormous debate”, at times inflated to be meaningless and at other times deflated to be too narrow. They believe the definition of racism as “racial hate” is too narrow, though it has gain legal traction as a category, as in when “hate crimes” are considered an offense with enhanced sentencing, or universities institute codes against “hate speech”. I’ve read “racial animus” as another term that means something similar, though perhaps more subtle, than “racial hate”.

The narrow definition of racism as racial hate is rejected due to an argument O&W attribute to David Theo Goldberg (1997), which is that by narrowly focusing on “crimes of passion” (I would gloss this more broadly to “psychological states”), the interpretation of racism misses the ideologies, policies, and practices that “normalize and reproduce racial inequality and domination”. In other words, an adequate use of racism, as a term, has to reference the social structure that is race.

Omi and Winant define racism thus:

A racial project can be defined as racist if it creates or reproduces structures of domination based on racial significance and identities.

A key implication of their argument is that not all racial projects are racist. Recall that Omi and Winant are very critical of colorblindness as (they allege) a political hegemony. They want to make room for racial solidarity and agency despite the hierarchical nature of race as a social fact. This allows them to answer two important questions.

Are there anti-racist projects? Yes. “[W]e define anti-racist projects as those that undo or resist structures of domination based on racial significations and identities.”

Note that the two definitions are not exactly parallel in construction. To “create and reproduce structure” is not entirely the opposite of “undo or resist structure”. Given O&W’s ontology, and the fact that racial structure is always the accumulation of a long history of racial projects, projects that have been performed by (bluntly) both the right and the left, and given that social structure is not homogeneous across location (consider how race is different in the United States and in Brazil, or different in New York City and in Dallas), and given that an act of resistance is also an act of creation, implicitly, one could easily get confused trying to apply these definitions. The key word, “domination”, is not defined precisely, and everything hinges on this. It’s clear from the writing that Omi and Winant subscribe to the “left” view of how racial domination works; this orients their definition of racism concretely. But they also note that the political agency of people of color in the United States over the past hundred years or so has gained them political power. Isn’t the key to being racist having power? This leads O&W to the second question, which is:

Can Group of Color Advance Racist Projects? O&W’s answer is, yes, they can. There are exceptions to the hierarchy of white supremacy, and in these exceptions there can be racial conflicts where a group of color is racist. Their example is in cases where blacks and Latinos are in contest over resources. O&W do not go so far as to say that it is possible to be racist against white people, because they believe all racial relations are shaped by the overarching power of white supremacy.

Case Study: Jeong’s tweets

That is the setup. So what about Sarah Jeong? Well, she wrote some tweets mocking white people, and specifically white men, in 2014, which was by the way the heyday of obscene group conflict on Twitter. That was the year of Gamergate. A whole year of tweets that are probably best forgotten. She compared white people to goblins, she compared them the dogs. She said she wished ill on white men. As has been pointed out, if any other group besides white men were talked about, her tweets would be seen as undeniably racist, etc. They are, truth be told, similar rhetorically to the kinds of tweets that the left media have been so appalled at for some time.

They have surfaced again because Jeong was hired by the New York Times, and right wing activists (or maybe just trolls, I’m a little unclear about which) surfaced the old tweets. In the political climate of 2018, when Internet racism feels like it’s gotten terribly real, these struck a chord and triggered some reflection.

What should we make of these tweets, in light of racial formation theory?

First, we should acknowledge that the New York Times has some really great lawyers working for it (Jeong herself having a law degree). Their statement was that at the time of the tweets, (a) Jeong was being harassed, (b) that she responded to them in the same rhetorical manner of the harassment, that (c) that’s regrettable, but also, it’s long past and not so bad. Sarah Jeong’s own statement makes this point, acknowledges that the tweets may be hurtful out of context, and that she didn’t mean them the way others could take them. “Harassment” is actually a relatively neutral term; you can harass somebody, legally speaking, on the basis of their race without invoking a reaction from anti-racist sociologists. This is all perfectly sensible, IMO, and the case is pretty much closed.

But that’s not where the discussion on the Internet ended. Why? Because the online media is where the contest of racial formation is happening.

We can ask: Were Sarah Jeong’s tweets a racial project? The answer seems to be, yes, they were. It was a representation of racial identity (whiteness) “to organize and distribute resources (economic, political, cultural) along particular racial lines”. Jeong is a journalist and scholar, and these arguments are happening in social media, which are always-already part of the capitalist attention economy. Jeong’s success is partly due to her confrontation of on-line harassers and responses to right-wing media figures. And her activity is the kind that rallies attention along racial lines–anti-racist, racist, etc.

Confusingly, the language she used in these tweets reads as hateful. “Dumbass fucking white people marking up the internet with their opinions like dogs pissing on fire hydrants” does, reasonably, sound like it expresses some racial animus. If we were to accept the definition of racism as merely the possession of ill will towards a race, which seems to be Andrew Sullivan’s definition, then we would have to say those were racist tweets.

We could invoke a defense here. Were the tweets satire? Did Jeong not actually have any ill will towards white people? One might wonder, similarly, whether 4chan anti-Semites are actually anti-Semitic or just trolling. The whole question of who is just trolling and who should be taken seriously on the Internet is such an interesting one. But it’s one I had to walk away from long ago after the heat got turned up on me one time. So it goes.

What everyone knows is at stake, though, is the contention that the ‘racial animus’ definition is not the real definition of racism, but rather that something like O&W’s definition is. By their account, (a) a racial project is only racist if it aligns with structures of racial domination, and (b) the structure of racial domination is a white supremacist one. Ergo, by this account, Jeong’s tweets are not racist, because insulting white people does not create or reproduce structures of white supremacist domination.

It’s worth pointing out that there are two different definitions of a word here and that neither one is inherently more correct of a definition. I’m hesitant to label the former definition “right” and the latter definition “left” because there’s nothing about the former definition that would make you, say, not want to abolish the cradle-to-prison system or any number of other real, institutional reforms. But the latter definition is favored by progressives, who have a fairly coherent world view. O&W’s theorizing is consistent with it. The helpful thing about this worldview is that it makes it difficult to complain about progressive rhetorical tactics without getting mired into a theoretical debate about their definitions, which makes it an excellent ideology for getting into fights on the Internet. This is largely what Andrew Sullivan was getting at in his critique.

What Jeong and the NYT seem to get, which some others don’t, is that comments that insult an entire race can be hurtful and bothersome even if they are not racist in the progressive sense of the term. It is not clear what we should call a racial project that is hurtful and bothersome to white people if we do not call it racist. A difficulty with the progressive definition of racism is that agreement on the application of the term is going to depend on agreement about what the dominate racial structures are. What we’ve learned in the past few years is that the left-wing view of what these racial structures are is not as widely shared as it was believed to be. For example, there are far more people who believe in anti-Semitic conspiracies, in which the dominant race is the Jews, active in American political life than was supposed. Given O&W’s definition of racism, if it were, factually, the case that Jews ran the world, then anti-Semitic comments would not be racist in the meaningful sense.

Which means that the progressive definition of racism, to be effective, depends on widespread agreement about white supremacist hegemony, which is a much, much more complicated thing to try to persuade somebody of than a particular person’s racial animus.

A number of people have been dismissing any negative reaction to the resurfacing of Jeong’s tweets, taking the opportunity to disparage that reaction as misguided and backwards. As far as I can tell, there is an argument that Jeong’s tweets are actually anti-racist. This article argues that casually disparaging white men is just something anti-racists do lightly to call attention to the dominant social structures and also the despicable behavior of some white men. Naturally, these comments are meant humorously, and not intended to refer to all white men (to assume it does it to distract from the structural issues at stake). They are jokes that should be celebrated, because the the progressives have already won this argument over #notallmen, also in 2014. Understood properly as progressive, anti-racist, social justice idiom, there is nothing offensive about Jeong’s tweets.

I am probably in a minority on this one, but I do not agree with this assessment, for a number of reasons.

First, the idea that you can have a private, in-group conversation on Twitter is absurd.

Second, the idea that a whole community of people casually expresses racial animus because of representative examples of wrongdoing by members of a social class can be alarming whether or not it’s Trump voters talking about Mexicans or anti-racists talking about white people. That alarm, as an emotional reaction, is a reality whether or not the dominant racial structures are being reproduced or challenged.

Third, I’m not convinced that as a racial project, tweets simply insulting white people really counts as “anti-racist” in a substantive sense. Anti-racist projects are “those that undo or resist structures of domination based on racial significations and identities.” Is saying “white men are bullshit” undoing a structure of domination? I’m pretty sure any white supremacist structures of domination have survived that attack. Does it resist white supremacist domination? The thrust of wise sociology of race is that what’s more important than the social meanings are the institutional structures that maintain racial inequality. Even if this statement has a meaning that is degrading to white people, it doesn’t seem to be doing any work of reorganizing resources around (anti-)racial lines. It’s just a crass insult. It may well have actually backfired, or had an effect on the racial organization of attention that neither harmed nor supported white supremacy, but rather just made its manifestation on the Internet more toxic (in response to other, much greater, toxicity, of course).

I suppose what I’m arguing for is greater recognition of nuance than either the “left” or “right” position has offered on this case. I’m saying that it is possible to engage in a racial project that is neither racist nor anti-racist. You could have a racial project that is amusingly absurd, or toxic, or cleverly insightful. Moreover, there is a complex of ethical responsibilities and principles that intersects with racial projects but is not contained by the logic of race. There are greater standards of decency that can be invoked. These are not simply constraints on etiquette. They also are relevant to the contest of racial projects and their outcomes.

Addendum, Mar. 1, 2019: I recently learned a (for me) surprising statistic via Chetty et al.‘s “Race and Economic Opportunity in the United States: An Intergenerational Perspective” (2018) work: that the median income of Asian-American households was about $17k higher than the median income of White households in 2016. I’m honestly not sure whether this matters to the preceding analysis or not. But it might, and I think it’s an interesting question whether or not it does. I add it with no further comment.

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August 5, 2018

From social movements to business standards

Matt Levine has a recent piece discussing how discovering the history of sexual harassment complaints about a company’s leadership is becoming part of standard due diligence before an acquisition. Implicitly, the threat of liability, and presumably the costs of a public relations scandal, are material to the value of the company being acquired.

Perhaps relatedly, the National Venture Capital Association has added to its Model Legal Documents a slew of policies related to harassment and discrimination, codes of conduct, attracting and retaining diverse talent, and family friendly policies. Rumor has it that venture capitalists will now encourage companies they invest in to adopt these tested versions of the policies, much as an organization would adopt a tested and well-understood technical standard.

I have in various researcher roles studied social movements and political change, but these studies have left me with the conclusion that changes to culture are rarely self-propelled, but rather are often due to more fundamental changes in demographics or institutions. State legislation is very slow to move and limited in its range, and so often trails behind other amassing of power and will.

Corporate self-regulation, on the other hand, through standards, contracts, due diligence, and the like, seems to be quite adaptive. This is leading me to the conclusion that a best kept secret of cultural change is that some of the main drivers of it are actually deeply embedded in corporate law. Corporate law has the reputation of being a dry subject which sucks in recent law grads into soulless careers. But what if that wasn’t what corporate law was? What if corporate law was really where the action is?

In broader terms, the adaptivety of corporate policy to changing demographics and social needs perhaps explains the paradox of “progressive neoliberalism”, or the idea that the emerging professional business class seems to be socially liberal, whether or not it is fiscally conservative. Professional culture requires, due to antidiscrimination law and other policies, the compliance of its employees with a standard of ‘political correctness’. People can’t be hostile to each other in the workplace or else they will get fired, and they especially can’t be hostile to anybody on the basis of their being part of a protected category. This has been enshrined into law long ago. Part of the role of educational institutions is to teach students a coherent story about why these rules are what they are and how they are not just legally mandated, but morally compelling. So the professional class has an ideology of inclusivity because it must.

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July 30, 2018

How the Internet changed everything: a grand theory of AI, etc.

I have read many a think piece and critical take about AI, the Internet, and so on. I offer a new theory of What Happened, the best I can come up with based on my research and observations to date.

Consider this article, “The death of Don Draper”, as a story that represents the changes that occur more broadly. In this story, advertising was once a creative field that any company with capital could hire out to increase their chances of getting noticed and purchased, albeit in a noisy way. Because everything was very uncertain, those that could afford it blew a lot of money on it (“Half of advertising is useless; the problem is knowing which half”).

A similar story could be told about access to the news–dominated by big budgets that hid quality–and political candidates–whose activities were largely not exposed to scrutiny and could follow a similarly noisy pattern of hype and success.

Then along came the Internet and targeted advertising, which did a number of things:

It reduced search costs for people looking for particular products, because Google searches the web and Amazon indexes all the products (and because of lots of smaller versions of Google and Amazon).
It reduced the uncertainty of advertising effectiveness because it allowed for fine-grained measurement of conversion metrics. This reduced the search costs of producers to advertisers, and from advertisers to audiences.
It reduced the search costs of people finding alternative media and political interest groups, leading to a reorganization of culture. The media and cultural landscape could more precisely reflect the exogenous factors of social difference.
It reduced the cost of finding people based on their wealth, social influence, and so on, implicitly creating a kind of ‘social credit system’ distributed across various web services. (Gandy, 1993; Fourcade and Healy, 2016)

What happens when you reduce search costs in markets? Robert Jensen’s (2007) study of the introduction of mobile phones to fish markets in Kerala is illustrative here. Fish prices were very noisy due to bad communication until mobile phones were introduced. After that, the prices stabilized, owing to swifter communication between fisherman and markets. Suddenly able to preempt prices rather than subject to the vagaries to them, fisherman could then choose to go to the market that would give them the best price.

Reducing search costs makes markets more efficient and larger. In doing so, it increases inequality, because whereas a lot of lower quality goods and services can survive in a noisy economy, when consumers are more informed and more efficient at searching, they can cut out less useful services. They can then standardize on “the best” option available, which can be produced with economies of scale. So inefficient, noisy parts of the economy were squeezed out and the surplus amassed in the hands of a big few intermediaries, who we now see as Big Tech leveraging AI.

Is AI an appropriate term? I have always liked this definition of AI: “Anything that humans still do better than computers.” Most recently I’ve seen this restated in an interview with Andrew Moore, quoted by Zachary Lipton:

Artificial intelligence is the science and engineering of making computers behave in ways that, until recently, we thought required human intelligence.

The use of technical platforms to dramatically reduce search costs. “Searching” for people, products, and information is something that used to require human intelligence. Now it is assisted by computers. And whether or not the average user knows that they are doing when they search (Mulligan and Griffin, 2018), as a commercial function, the panoply of search engines and recommendation systems and auctions that occupy the central places in the information economy outperform human intelligence largely by virtue of having access to more data–a broader perspective–than any individual human could ever accomplish.

The comparison between the Google search engine and a human’s intelligence is therefore ill-posed. The kinds of functions tech platforms are performing are things that have only every been solved by human organizations, especially bureaucratic ones. And while the digital user interfaces of these services hides the people “inside” the machines, we know that of course there’s an enormous amount of ongoing human labor involved in the creation and maintenance of any successful “AI” that’s in production.

In conclusion, the Internet changed everything for a mundane reason that could have been predicted from neoclassical economic theory. It reduced search costs, creating economic efficiency and inequality, by allowing for new kinds of organizations based on broad digital connectivity. “AI” is a distraction from these accomplishments, as is most “critical” reaction to these developments, which do not do justice to the facts of the matter because by taking up a humanistic lens, they tend not to address how decisions by individual humans and changes to their experience experience are due to large-scale aggregate processes and strategic behaviors by businesses.

References

Gandy Jr, Oscar H. The Panoptic Sort: A Political Economy of Personal Information. Critical Studies in Communication and in the Cultural Industries. Westview Press, Inc., 5500 Central Avenue, Boulder, CO 80301-2877 (paperback: ISBN-0-8133-1657-X, $18.95; hardcover: ISBN-0-8133-1656-1, $61.50)., 1993.

Fourcade, Marion, and Kieran Healy. “Seeing like a market.” Socio-Economic Review 15.1 (2016): 9-29.

Jensen, Robert. “The digital provide: Information (technology), market performance, and welfare in the South Indian fisheries sector.” The quarterly journal of economics 122.3 (2007): 879-924.

Mulligan, Deirdre K. and Griffin, Daniel S. “Rescripting Search to Respect the Right to Truth.” 2 GEO. L. TECH. REV. 557 (2018)

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July 10, 2018

search engines and authoritarian threats

I’ve been intrigued by Daniel Griffin’s tweets lately, which have been about situating some upcoming work of his an Deirdre Mulligan’s regarding the experience of using search engines. There is a lively discussion lately about the experience of those searching for information and the way they respond to misinformation or extremism that they discover through organic use of search engines and media recommendation systems. This is apparently how the concern around “fake news” has developed in the HCI and STS world since it became an issue shortly after the 2016 election.

I do not have much to add to this discussion directly. Consumer misuse of search engines is, to me, analogous to consumer misuse of other forms of print media. I would assume to best solution to it is education in the complete sense, and the problems with the U.S. education system are, despite all good intentions, not HCI problems.

Wearing my privacy researcher hat, however, I have become interested in a different aspect of search engines and the politics around them that is less obvious to the consumer and therefore less popularly discussed, but I fear is more pernicious precisely because it is not part of the general imaginary around search. This is the aspect that is around the tracking of search engine activity, and what it means for this activity to be in the hands of not just such benevolent organizations such as Google, but also such malevolent organizations such as Bizarro World Google*.

Here is the scenario, so to speak: for whatever reason, we begin to see ourselves in a more adversarial relationship with search engines. I mean “search engine” here in the broad sense, including Siri, Alexa, Google News, YouTube, Bing, Baidu, Yandex, and all the more minor search engines embedded in web services and appliances that do something more focused than crawl the whole web. By ‘search engine’ I mean entire UX paradigm of the query into the vast unknown of semantic and semiotic space that contemporary information access depends on. In all these cases, the user is at a systematic disadvantage in the sense that their query is a data point amount many others. The task of the search engine is to predict the desired response to the query and provide it. In return, the search engine gets the query, tied to the identity of the user. That is one piece of a larger mosaic; to be a search engine is to have a picture of a population and their interests and the mandate to categorize and understand those people.

In Western neoliberal political systems the central function of the search engine is realized as commercial transaction facilitating other commercial transactions. My “search” is a consumer service; I “pay” for this search by giving my query to the adjoined advertising function, which allows other commercial providers to “search” for me, indirectly, through the ad auction platform. It is a market with more than just two sides. There’s the consumer who wants information and may be tempted by other information. There are the primary content providers, who satisfy consumer content demand directly. And there are secondary content providers who want to intrude on consumer attention in a systematic and successful way. The commercial, ad-enabled search engine reduces transaction costs for the consumer’s search and sells a fraction of that attentional surplus to the advertisers. Striking the right balance, the consumer is happy enough with the trade.

Part of the success of commercial search engines is the promise of privacy in the sense that the consumer’s queries are entrusted secretly with the engine, and this data is not leaked or sold. Wise people know not to write into email things that they would not want in the worst case exposed to the public. Unwise people are more common than wise people, and ill-considered emails are written all the time. Most unwise people do not come to harm because of this because privacy in email is a de facto standard; it is the very security of email that makes the possibility of its being leaked alarming.

So to with search engine queries. “Ask me anything,” suggests the search engine, “I won’t tell”. “Well, I will reveal your data in an aggregate way; I’ll expose you to selective advertising. But I’m a trusted intermediary. You won’t come to any harms besides exposure to a few ads.”

That is all a safe assumption until it isn’t, at which point we must reconsider the role of the search engine. Suppose that, instead of living in a neoliberal democracy where the free search for information was sanctioned as necessary for the operation of a free market, we lived in an authoritarian country organized around the principle that disloyalty to the state should be crushed.

Under these conditions, the transition of a society into one that depends for its access to information on search engines is quite troubling. The act of looking for information is a political signal. Suppose you are looking for information about an extremist, subversive ideology. To do so is to flag yourself as a potential threat of the state. Suppose that you are looking for information about a morally dubious activity. To do so is to make yourself vulnerable to kompromat.

Under an authoritarian regime, curiosity and free thought are a problem, and a problem that are readily identified by ones search queries. Further, an authoritarian regime benefits if the risks of searching for the ‘wrong’ thing are widely known, since it suppresses inquiry. Hence, the very vaguely announced and, in fact, implausible to implement Social Credit System in China does not need to exist to be effective; people need only believe it exists for it to have a chilling and organizing effect on behavior. That is the lesson of the Foucouldean panopticon: it doesn’t need a guard sitting in it to function.

Do we have a word for this function of search engines in an authoritarian system? We haven’t needed one in our liberal democracy, which perhaps we take for granted. “Censorship” does not apply, because what’s at stake is not speech but the ability to listen and learn. “Surveillance” is too general. It doesn’t capture the specific constraints on acquiring information, on being curious. What is the right term for this threat? What is the term for the corresponding liberty?

I’ll conclude with a chilling thought: when at war, all states are authoritarian, to somebody. Every state has an extremist, subversive ideology that it watches out for and tries in one way or another to suppress. Our search queries are always of strategic or tactical interest to somebody. Search engine policies are always an issue of national security, in one way or another.

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July 10, 2018

The California Consumer Privacy Act of 2018: a deep dive

I have given the California Consumer Privacy Act of 2018 a close read.

In summary, the act grants consumers a right to request that businesses disclose the categories of information about them that it collects and sells, and gives consumers the right to businesses to delete their information and opt out of sale.

What follows are points I found particularly interesting. Quotations from the Act (that’s what I’ll call it) will be in bold. Questions (meaning, questions that I don’t have an answer to at the time of writing) will be in italics.

Privacy rights

SEC. 2. The Legislature finds and declares that:
(a) In 1972, California voters amended the California Constitution to include the right of privacy among the “inalienable” rights of all people. …

I did not know that. I was under the impression that in the United States, the ‘right to privacy’ was a matter of legal interpretation, derived from other more explicitly protected rights. A right to privacy is enumerated in Article 12 of the Universal Declaration of Human Rights, adopted in 1948 by the United Nations General Assembly. There’s something like a right to privacy in Article 8 of the 1950 European Convention on Human Rights. California appears to have followed their lead on this.

In several places in the Act, it specifies that exceptions may be made in order to be compliant with federal law. Is there an ideological or legal disconnect between privacy in California and privacy nationally? Consider the Snowden/Schrems/Privacy Shield issue: exchanges of European data to the United States are given protections from federal surveillance practices. This presumably means that the U.S. federal government agrees to respect EU privacy rights. Can California negotiate for such treatment from the U.S. government?

These are the rights specifically granted by the Act:

[SEC. 2.] (i) Therefore, it is the intent of the Legislature to further Californians’ right to privacy by giving consumers an effective way to control their personal information, by ensuring the following rights:

(1) The right of Californians to know what personal information is being collected about them.

(2) The right of Californians to know whether their personal information is sold or disclosed and to whom.

(3) The right of Californians to say no to the sale of personal information.

(4) The right of Californians to access their personal information.

(5) The right of Californians to equal service and price, even if they exercise their privacy rights.

It has been only recently that I’ve been attuned to the idea of privacy rights. Perhaps this is because I am from a place that apparently does not have them. A comparison that I believe should be made more often is the comparison of privacy rights to property rights. Clearly privacy rights have become as economically relevant as property rights. But currently, property rights enjoy a widespread acceptance and enforcement that privacy rights do not.

Personal information defined through example categories

“Information” is a notoriously difficult thing to define. The Act gets around the problem of defining “personal information” by repeatedly providing many examples of it. The examples are themselves rather abstract and are implicitly “categories” of personal information. Categorization of personal information is important to the law because under several conditions businesses must disclose the categories of personal information collected, sold, etc. to consumers.

SEC. 2. (e) Many businesses collect personal information from California consumers. They may know where a consumer lives and how many children a consumer has, how fast a consumer drives, a consumer’s personality, sleep habits, biometric and health information, financial information, precise geolocation information, and social networks, to name a few categories.

[1798.140.] (o) (1) “Personal information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household. Personal information includes, but is not limited to, the following:

(A) Identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers.

(B) Any categories of personal information described in subdivision (e) of Section 1798.80.

(C) Characteristics of protected classifications under California or federal law.

(D) Commercial information, including records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.

Note that protected classifications (1798.140.(o)(1)(C)) includes race, which is socially constructed category (see Omi and Winant on racial formation). The Act appears to be saying that personal information includes the race of the consumer. Contrast this with information as identifiers (see 1798.140.(o)(1)(A)) and information as records (1798.140.(o)(1)(D)). So “personal information” in one case is the property of a person (and a socially constructed one at that); in another case it is the specific syntactic form; in another case it is a document representing some past action. The Act is very ontologically confused.

Other categories of personal information include (continuing this last section):

(E) Biometric information.

(F) Internet or other electronic network activity information, including, but not limited to, browsing history, search history, and information regarding a consumer’s interaction with an Internet Web site, application, or advertisement.

Devices and Internet activity will be discussed in more depth in the next section.

(G) Geolocation data.

(H) Audio, electronic, visual, thermal, olfactory, or similar information.

(I) Professional or employment-related information.

(J) Education information, defined as information that is not publicly available personally identifiable information as defined in the Family Educational Rights and Privacy Act (20 U.S.C. section 1232g, 34 C.F.R. Part 99).

(K) Inferences drawn from any of the information identified in this subdivision to create a profile about a consumer reflecting the consumer’s preferences, characteristics, psychological trends, preferences, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.

Given that the main use of information is to support inferences, it is notable that inferences are dealt with here as a special category of information, and that sensitive inferences are those that pertain to behavior and psychology. This may be narrowly interpreted to exclude some kinds of inferences that may be relevant and valuable but not so immediately recognizable as ‘personal’. For example, one could infer from personal information the ‘position’ of a person in an arbitrary multi-dimensional space that compresses everything known about a consumer, and use this representation for targeted interventions (such as advertising). Or one could interpret it broadly: since almost all personal information is relevant to ‘behavior’ in a broad sense, and inference from it is also ‘about behavior’, and therefore protected.

Device behavior

The Act focuses on the rights of consumers and deals somewhat awkwardly with the fact that most information collected about consumers is done indirectly through machines. The Act acknowledges that sometimes devices are used by more than one person (for example, when they are used by a family), but it does not deal easily with other forms of sharing arrangements (i.e., an open Wifi hotspot) and the problems associated with identifying which person a particular device’s activity is “about”.

[1798.140.] (g) “Consumer” means a natural person who is a California resident, as defined in Section 17014 of Title 18 of the California Code of Regulations, as that section read on September 1, 2017, however identified, including by any unique identifier. [SB: italics mine.]

[1798.140.] (x) “Unique identifier” or “Unique personal identifier” means a persistent identifier that can be used to recognize a consumer, a family, or a device that is linked to a consumer or family, over time and across different services, including, but not limited to, a device identifier; an Internet Protocol address; cookies, beacons, pixel tags, mobile ad identifiers, or similar technology; customer number, unique pseudonym, or user alias; telephone numbers, or other forms of persistent or probabilistic identifiers that can be used to identify a particular consumer or device. For purposes of this subdivision, “family” means a custodial parent or guardian and any minor children over which the parent or guardian has custody.

Suppose you are a business that collects traffic information and website behavior connected to IP addresses, but you don’t go through the effort of identifying the ‘consumer’ who is doing the behavior. In fact, you may collect a lot of traffic behavior that is not connected to any particular ‘consumer’ at all, but is rather the activity of a bot or crawler operated by a business. Are you on the hook to disclose personal information to consumers if they ask for their traffic activity? If they do, or if they do not, provide their IP address?

Incidentally, while the Act seems comfortable defining a Consumer as a natural person identified by a machine address, it also happily defines a Person as “proprietorship, firm, partnership, joint venture, syndicate, business trust, company, corporation, …” etc. in addition to “an individual”. Note that “personal information” is specifically information about a consumer, not a Person (i.e., business).

This may make you wonder what a Business is, since these are the entities that are bound by the Act.

Businesses and California

The Act mainly details the rights that consumers have with respect to businesses that collect, sell, or lose their information. But what is a business?

[1798.140.] (c) “Business” means:
(1) A sole proprietorship, partnership, limited liability company, corporation, association, or other legal entity that is organized or operated for the profit or financial benefit of its shareholders or other owners, that collects consumers’ personal information, or on the behalf of which such information is collected and that alone, or jointly with others, determines the purposes and means of the processing of consumers’ personal information, that does business in the State of California, and that satisfies one or more of the following thresholds:

(A) Has annual gross revenues in excess of twenty-five million dollars ($25,000,000), as adjusted pursuant to paragraph (5) of subdivision (a) of Section 1798.185.

(B) Alone or in combination, annually buys, receives for the business’ commercial purposes, sells, or shares for commercial purposes, alone or in combination, the personal information of 50,000 or more consumers, households, or devices.

(C) Derives 50 percent or more of its annual revenues from selling consumers’ personal information.

This is not a generic definition of a business, just as the earlier definition of ‘consumer’ is not a generic definition of consumer. This definition of ‘business’ is a sui generis definition for the purposes of consumer privacy protection, as it defines businesses in terms of their collection and use of personal information. The definition explicitly thresholds the applicability of the law to businesses over certain limits.

There does appear to be a lot of wiggle room and potential for abuse here. Consider: the Mirai botnet had by one estimate 2.5 million devices compromised. Say you are a small business that collects site traffic. Suppose the Mirai botnet targets your site with a DDOS attack. Suddenly, your business collects information of millions of devices, and the Act comes into effect. Now you are liable for disclosing consumer information. Is that right?

An alternative reading of this section would recall that the definition (!) of consumer, in this law, is a California resident. So maybe the thresholds in 1798.140.(c)(B) and 1798.140.(c)(C) refer specifically to Californian consumers. Of course, for any particular device, information about where that device’s owner lives is personal information.

Having 50,000 California customers or users is a decent threshold for defining whether or not a business “does business in California”. Given the size and demographics of California, you would expect that many of the, just for example, major Chinese technology companies like Tencent to have 50,000 Californian users. This brings up the question of extraterritorial enforcement, which gave the GDPR so much leverage.

Extraterritoriality and financing

In a nutshell, it looks like the Act is intended to allow Californians to sue foreign companies. How big a deal is this? The penalties for noncompliance are civil penalties and a price per violation (presumably individual violation), not a ratio of profit, but you could imagine them adding up:

[1798.155.] (b) Notwithstanding Section 17206 of the Business and Professions Code, any person, business, or service provider that intentionally violates this title may be liable for a civil penalty of up to seven thousand five hundred dollars ($7,500) for each violation.

(c) Notwithstanding Section 17206 of the Business and Professions Code, any civil penalty assessed pursuant to Section 17206 for a violation of this title, and the proceeds of any settlement of an action brought pursuant to subdivision (a), shall be allocated as follows:

(1) Twenty percent to the Consumer Privacy Fund, created within the General Fund pursuant to subdivision (a) of Section 1798.109, with the intent to fully offset any costs incurred by the state courts and the Attorney General in connection with this title.

(2) Eighty percent to the jurisdiction on whose behalf the action leading to the civil penalty was brought.

(d) It is the intent of the Legislature that the percentages specified in subdivision (c) be adjusted as necessary to ensure that any civil penalties assessed for a violation of this title fully offset any costs incurred by the state courts and the Attorney General in connection with this title, including a sufficient amount to cover any deficit from a prior fiscal year.

1798.160. (a) A special fund to be known as the “Consumer Privacy Fund” is hereby created within the General Fund in the State Treasury, and is available upon appropriation by the Legislature to offset any costs incurred by the state courts in connection with actions brought to enforce this title and any costs incurred by the Attorney General in carrying out the Attorney General’s duties under this title.

(b) Funds transferred to the Consumer Privacy Fund shall be used exclusively to offset any costs incurred by the state courts and the Attorney General in connection with this title. These funds shall not be subject to appropriation or transfer by the Legislature for any other purpose, unless the Director of Finance determines that the funds are in excess of the funding needed to fully offset the costs incurred by the state courts and the Attorney General in connection with this title, in which case the Legislature may appropriate excess funds for other purposes.

So, just to be concrete: suppose a business collects personal information on 50,000 Californians and does not disclose that information. California could then sue that business for $7,500 * 50,000 = $375 million in civil penalties, that then goes into the Consumer Privacy Fund, whose purpose is to cover the cost of further lawsuits. The process funds itself. If it makes any extra money, it can be appropriated for other things.

Meaning, I guess this Act basically sustains a very sustained bunch of investigations and fines. You could imagine that this starts out with just some lawyers responding to civil complaints. But consider the scope of the Act, and how it means that any business in the world not properly disclosing information about Californians is liable to be fined. Suppose that some kind of blockchain or botnet based entity starts committing surveillance in violation of this act on a large scale. What kinds of technical investigative capacity is necessary to enforce this kind of thing worldwide? Does this become a self-funding cybercrime investigative unit? How are foreign actors who are responsible for such things brought to justice?

This is where it’s totally clear that I am not a lawyer. I am still puzzling over the meaning of [1798.155.(c)(2), for example.

“Publicly available information”

There are more weird quirks to this Act than I can dig into in this post, but one that deserves mention (as homage to Helen Nissenbaum, among other reasons) is the stipulation about publicly available information, which does not mean what you think it means:

(2) “Personal information” does not include publicly available information. For these purposes, “publicly available” means information that is lawfully made available from federal, state, or local government records, if any conditions associated with such information. “Publicly available” does not mean biometric information collected by a business about a consumer without the consumer’s knowledge. Information is not “publicly available” if that data is used for a purpose that is not compatible with the purpose for which the data is maintained and made available in the government records or for which it is publicly maintained. “Publicly available” does not include consumer information that is deidentified or aggregate consumer information.

The grammatical error in the second sentence (the phrase beginning with “if any conditions” trails off into nowhere…) indicates that this paragraph was hastily written and never finished, as if in response to an afterthought. There’s a lot going on here.

First, the sense of ‘public’ used here is the sense of ‘public institutions’ or the res publica. Amazingly and a bit implausibly, government records are considered publicly available only when they are used for purposes compatible with their maintenance. So if a business takes a public record and uses it differently that it was originally intended when it was ‘made available’, it becomes personal information that must be disclosed? As somebody who came out of the Open Data movement, I have to admit I find this baffling. On the other hand, it may be the brilliant solution to privacy in public on the Internet that society has been looking for.

Second, the stipulation that “publicly available” does not mean biometric information collected by a business about a consumer without the consumer’s knowledge” is surprising. It appears to be written with particular cases in mind–perhaps IoT sensing. But why specifically biometric information, as opposed to other kinds of information collected without consumer knowledge?

There is a lot going on in this paragraph. Oddly, it is not one of the ones explicitly flagged for review and revision in the section of soliciting public participation on changes before the Act goes into effect on 2020.

A work in progress

1798.185. (a) On or before January 1, 2020, the Attorney General shall solicit broad public participation to adopt regulations to further the purposes of this title, including, but not limited to, the following areas:

This is a weird law. I suppose it was written and passed to capitalize on a particular political moment and crisis (Sec. 2 specifically mentions Cambridge Analytica as a motivation), drafted to best express its purpose and intent, and given the horizon of 2020 to allow for revisions.

It must be said that there’s nothing in this Act that threatens the business models of any American Big Tech companies in any way, since storing consumer information in order to provide derivative ad targeting services is totally fine as long as businesses do the right disclosures, which they are now all doing because of GDPR anyway. There is a sense that this is California taking the opportunity to start the conversation about what U.S. data protection law post-GDPR will be like, which is of course commendable. As a statement of intent, it is great. Where it starts to get funky is in the definitions of its key terms and the underlying theory of privacy behind them. We can anticipate some rockiness there and try to unpack these assumptions before adopting similar policies in other states.

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