Ken Englehart’s Exceedingly Lame Argument Against Net Neutrality

Over at the New York Times, Ken Englehart, “a lawyer specializing in communications law, is a senior adviser for StrategyCorp, an adjunct professor at Osgoode Hall Law School and a senior fellow at the C. D. Howe Institute” offers us an astonishing argument suggesting we not worry about the FCC’s move to repeal Net Neutrality. It roughly consists of saying “Don’t worry, corporations will do right by you.” Englehart accepts that the concerns raised by opponents of the FCC–” getting rid of neutrality regulation will lead to a “two-tier” internet: Internet service providers will start charging fees to websites and apps, and slow down or block the sites that don’t pay up…users will have unfettered access to only part of the internet, with the rest either inaccessible or slow”–have some merit for he makes note  of abuses by ISPs that confirm just those fears. But he just does not think we need worry that ISPs will abuse their new powers:

[T]hese are rare examples, for a reason: The public blowback was fierce, scaring other providers from following suit. Second, blocking competitors to protect your own services is anticompetitive conduct that might well be stopped by antitrust laws without any need for network neutrality regulations.

How reassuring. “Public blowback” seems unlikely to have any effect on the behavior of folks who run quasi-monopolies. Moreover, the idea that we might should trust our ISPs to not indulge in behavior that “might well be stopped by antitrust laws” also sounds unlikely to assuage any concerns pertaining to the abuse of ISP powers. It gets better, of course:

Net-neutrality defenders also worry that some service providers could slow down high-data peer-to-peer traffic, like BitTorrent. And again, it has happened, most notably in 2007, when Comcast throttled some peer-to-peer file sharing.

But it’s still good:

So why am I not worried? I worked for a telecommunications company for 25 years, and whatever one may think about corporate control over the internet, I know that it simply is not in service providers’ interests to throttle access to what consumers want to see. Neutral broadband access is a cash cow; why would they kill it?

Because service providers will make all the money they need by providing faster services to premium customers and not give a damn about the plebes?

But don’t worry:

[T]here’s still competition: Some markets may have just one cable provider, but phone companies offer increasingly comparable internet access — so if the cable provider slowed down or blocked some sites, the phone company could soak up the affected customers simply by promising not to do so.

Or they could collude, with both charging high prices because they know customers have nowhere to go?

Is this the best defenders of the FCC can do? The old ‘market pressures will make corporations behave’ pony trick? Englehart’s cleverest trick, I will admit, is the aside that “the current net neutrality rule was put in place by the Obama administration.” That’s a good dog-whistle to blow. Anything done by the Obama administration is worth repealing by anyone connected with this administration. And their cronies, like Englehart.

The Great Bob Mueller Seduction

Blood is in the water: the president of the United States appears to have committed ‘obstruction of justice.’ We know this because a ‘legal dream team’ headed by a special prosecutor, a former head of the FBI, is conducting a long, expensive, and detailed investigation of all the president’s men. The nefarious activities suspected to have been undertaken are varied and detailed; like most Americans, I’m entirely unsure of the precise particulars of the tangled web that is being unwoven for us. But those details seem unimportant; for at the end of it all lies deliverance, the impeachment of Donald Trump, the eviction of the carpetbaggers currently occupying the White House.

For some time now, via television and talk show and social media, we have been treated to the spectacle of–I do not think I exaggerate–millions of Americans salivating over the legal particulars of Bob Mueller’s investigation: how detailed and thorough its collection of evidence and marshaling of witnesses is; its skillful deployment of carrot and–a very big and threatening–stick in making legal plea deals; and so on. An entire cottage industry of tweeting experts has sprung up to inform us, in hushed and breathless tones, of how legally significant the latest development is and just how much shit is currently splattering various fans; these tweets go viral, urged hither and thither, as if merely by talking about how bad things are going to get for Trump and his men, their end can be hastened. There is much gleeful talk of how those  working in the Trump administration will be bankrupted by their legal fees as they are subpoenaed till the cows come home; you cannot escape the clutches of the ‘ace prosecutors’ that this paragon of virtue–a former FBI head–has lined up.

The worst features of our  legal system are on display: the staggering legal fees; the unfettered power of prosecutors. Give ’em hell, we say, because we know the legal system can destroy your life in all these ways; we’re just happy these big guns are turned against our political enemies. (Even if they have never been turned against the corporations that rule the republic’s roost.) It is a strange business for a nation which plays host to the moral and legal atrocity called ‘mass incarceration’ to be so cheering on a bunch of prosecutors–a demographic unfettered in its legal power, and persistently accused of misconduct. It is a peculiar business too that the FBI–whose investigations into political activists have, historically and currently, marked it out as anything but apolitical–is being hailed as the savior of the American Republic and our political knight in armor.

What Mueller’s investigation has done, of course, is turn political resistance to Trump into a spectator sport: we sit back–indeed, many have said just that–grab the popcorn and watch the shit show go down, and the superheroes, er, special prosecutors, will come to our rescue, ridding us of this blight. The legal system and its investigations appear to be working as a sponge, soaking up the political will and energy of Americans who otherwise might have been engaged in serious thinking about their political options. Instead, they have handed over their political agency to a bunch of lawyers appointed guardians of the state and our polity.

But it isn’t the lack of law that got us here; it is that plenty of institutional deformations are written into our laws and therefore respected; they demand for themselves a prima facie legal obligation, because they are burnished by the aura of the law, which is being enhanced by the ‘legal investigation’ under way. But the undemocratic Senate is legal; gerrymandering is legal; Supreme Court rulings that lock particular interpretations of the US Constitution into place are legal; the Electoral College is legal. Governments can be shut down legally; the US Senate can legally–under one interpretation–refuse to even consider a President’s nominee for the Supreme Court. The blocking of Obama’s nominations to the Federal Courts by the Republican Party and the corresponding stuffing of the Federal Courts by Federalist Society nominees was all legal. No dictator need abuse any legal American institutions in order to become a totalitarian despot. (This point has been made, quite eloquently, several times over, by Corey Robin; here is one variant of that claim.) That despotic power is built, legally, into American political institutions, all ready and ripe for hijacking by bad actors. Those bad actors are here, and they’ve hijacked the polity.

We are witnessing an old maneuver, one oft-repeated: take an existing political or social problem, subject it to the law, and pretend it has been solved. The authority of the law, its ideological entrenchment is reinforced, but the social or political problem remains unsolved. What will Bob Mueller’s team rid this republic of? A president, and very optimistically, his vice president too. Mueller cannot impeach the Republican Party (which will, in any case, not impeach Trump.) How then, will this nation’s political crisis be resolved? Mueller’s actions will not bring the Republican Party’s nihilism to heel. Indeed, an even worse hangover awaits us, if as is likely, this entire expensive legal investigation will end only with Trump riding out his term unscathed and going on to greater riches ‘outside.’ When the smoke clears and this prosecution is over, we will be left with the same severely compromised republic we had before. No team of special prosecutors can bring that to heel. We have outsourced the hard work to someone else, expecting to be rescued from a mess we made ourselves. This is ours; we have to clean this up.

Critiquing The Law And Discomfort

This semester, in my philosophy of law class, my students and I have attempted to work our way through a collection of ‘critical legal studies‘ articles; these run the gamut from critical legal histories to feminist legal theory to critical race theory. The reactions of my students to these pieces, and in particular to the second and third members of the list just made note of–represented by the writings of Catharine MacKinnon and Alan Freeman respectively–has been instructive.

Feminism makes men uncomfortable; for different reasons, it also makes women uncomfortable. It induces discomfort in men by reminding them of their privileged position of power; it induces discomfort in women by reminding them of this imbalance, and sometimes, of their own complicity in maintaining it. Both these reactions were on display as we read and discussed MacKinnon in class, especially in her claim that the ‘legal point of view’ is just the ‘male point of view.’ Her discussion of rape law, and especially of how the law understands the crucial notion of ‘consent,’ brought vital aspects of her critique together; no other component of her writing, not even the infamous ‘in a patriarchal, sexist society structured by forces of masculine domination, all sex is rape’ claim, made the students as uncomfortable as this discussion; they might have realized their own implication in the critique they were reading. They might also have imagined, like most other legal subjects, that whatever the messiness and infinite complications and entanglements of human sexuality, those were all magically resolved by the cleansing antiseptic force of legal formulations, categories, and reasoning. Not so; instead, seeking refuge in law as a response to the ‘problem,’ the ‘crime,’ of rape had merely allowed for the further institutionalization and entrenchment of sexism and male prejudice, now disguised as societal reason.

Talk of racial discrimination too, especially in a society like the US, induces discomfort. It reminds some that their assumed positions of merit and power rest on shaky, morally suspect, foundations; it serves notice that a dishonorable history underwrites this supposedly glorious present. And as in feminist legal theory, it points to how a supposed dispenser of fairness and justice is instead, in point of fact, the repository and the engine of social prejudice. The rhetoric on display here is similar: a claim is made to the rational dispensation of justice, to only be guided by ‘logic’ and ‘evidence’; the results as in the case of rape law, are eerily similar: claims of racial discrimination disappear when subjected to the inspection of the legal lens; the perspective or point of view of a central actor, the ‘victim,’ is ignored. Here again, an uncomfortable silence descends over many in the classroom; a reminder has been served that the assumption of a calm working out of an impeccable meritocratic logic serves only to mask the violence done to those finding themselves stuck with the short end of the legal stick.

Sometimes my students are curious and ask about what happened to the ‘critical legal studies movement’; I respond that the discomfort they experienced as ‘mere’ legal subjects in attempting to tackle its claims would only have been a  fraction of that experienced by those on the inside: the practitioners and theoreticians of law themselves. They would have actively sought to assuage their discomfort; the institutional displacement of critical legal studies would have suggested itself as a possibly remedy.

The NYPD Tells Us What They Think Of Brooklyn College Students

This is most decidedly a storm in a tea-cup, but it is a most revealing one. The New York City Police and their friends at the New York Post do not like the concern expressed by some Brooklyn College students about the presence of police on their campus:

Brooklyn College is kowtowing to cop-hating students by directing officers who need a bathroom break to the broken-down facilities in a building on the far edge of campus. A visit by The Post to the first-floor men’s room…revealed a broken toilet with a hideously stained seat and an “OUT OF ORDER” sign taped to the door of its stall. There was also a total lack of soap and paper towels. A junior…said it was far and away the worst place to go on the campus, which is part of the City University of New York system. “The bathroom is horrendous,” Abe said. “You can only wash your hands in one of the sinks because the other two are broken.”

Well, at least we have confirmation that our facilities are broken down and dysfunctional.

Meanwhile, an unidentified student is drafting a petition to college President Michelle Anderson to completely exile police….The student told the paper he wants Anderson to make it clear “that we do not want the NYPD on campus in any respect even if it’s just to take breaks and use bathroom.” Several students told The Post they and their pals shared the sentiment….Student-body President Nissim Said blamed the sentiments on an NYPD operation that sent an undercover cop to infiltrate the school’s Muslim community in search of Islamic terrorists.

Most interesting however, are the NYPD’s reactions. Please pay attention to the language below. Note the hostility, the entitlement, the self-pity:

Police who patrol the neighborhood around Brooklyn College were outraged at the students’ hostility to law-enforcement personnel. “It’s not like we’re invading their campus,” one cop said. “We’re only going there to use the bathroom.” Another called the students “insane,” adding: “That protester culture is warping their f–king minds.” NYPD sergeants-union chief Ed Mullins suggested, “Maybe it’s time these students, who fail to recognize the value of those protecting them, go take classes abroad — where they can have their bathrooms all to themselves.”

 In another article, an old offender, the morally deficient Pat Lynch chimed in as well:

The head of the Patrolmen’s Benevolent Association, Pat Lynch, said the college “needs to stand up for police officers and teach students to appreciate those who risk their lives so that they can get an education.”

“They will learn when they get out in the real world that police officers not only protect the rights of all to voice their opinions, regardless of how ill informed or moronic they may be, but we are the ones who will risk our lives to save them when an active shooter appears on campus,” he added.

The inconvenience caused to the police is minor; their reactions however, suggests that severe psychic damage has been caused. The fragility on display is alarming, a familiar reminder that the folks who patrol our city, ostensibly keeping the peace, all the while armed to the hilt, are very angry folks, easy to offend. Perhaps in these reactions we find the best case made for the students’ request that they stay off campus. With their guns and anger.

Note: The city’s Mayor, Bill De Blasio not wanting a repeat of the unpleasantness that has marred his relationship with the city’s police force, obligingly agreed:

Mayor de Blasio said the school “should never ban any police presence on campus.” “That makes no sense whatsoever,” Hizzoner said. “But even if it’s a student group, I think it’s misguided. I agree with the commissioner.”

 

Contra Cathy O’Neil, The ‘Ivory Tower’ Does Not ‘Ignore Tech’

In ‘Ivory Tower Cannot Keep On Ignoring TechCathy O’Neil writes:

We need academia to step up to fill in the gaps in our collective understanding about the new role of technology in shaping our lives. We need robust research on hiring algorithms that seem to filter out peoplewith mental health disorders…we need research to ensure that the same mistakes aren’t made again and again. It’s absolutely within the abilities of academic research to study such examples and to push against the most obvious statistical, ethical or constitutional failures and dedicate serious intellectual energy to finding solutions. And whereas professional technologists working at private companies are not in a position to critique their own work, academics theoretically enjoy much more freedom of inquiry.

There is essentially no distinct field of academic study that takes seriously the responsibility of understanding and critiquing the role of technology — and specifically, the algorithms that are responsible for so many decisions — in our lives. That’s not surprising. Which academic department is going to give up a valuable tenure line to devote to this, given how much academic departments fight over resources already?

O’Neil’s piece is an unfortunate continuation of a trend to continue to castigate academia for its lack of social responsibility, all the while ignoring the work academics do in precisely those domains where their absence is supposedly felt.

In her Op-Ed, O’Neil ignores science and technology studies, a field of study that “takes seriously the responsibility of understanding and critiquing the role of technology,” and many of whose members are engaged in precisely the kind of studies she thinks should be undertaken at this moment in the history of technology. Moreover, there are fields of academic studies such as philosophy of science, philosophy of technology, and the sociology of knowledge, all of which take very seriously the task of examining and critiquing the conceptual foundations of science and technology; such inquiries are not elucidatory, they are very often critical and skeptical. Such disciplines then, produce work that makes both descriptive and prescriptive claims about the practice of science, and the social, political, and ethical values that underwrite what may seem like purely ‘technical’ decisions pertaining to design and implementation. The humanities are not alone in this regard, most computer science departments now require a class in ‘Computer Ethics’ as part of the requirements for their major (indeed, I designed one such class here at Brooklyn College, and taught it for a few semesters.) And of course, legal academics have, in recent years started to pay attention to these fields and incorporated them in their writings on ‘algorithmic decision making,’ ‘algorithmic control’ and so on. (The work of Frank Pasquale and Danielle Citron is notable in this regard.) If O’Neil is interested, she could dig deeper into the philosophical canon and read works by critical theorists like Herbert Marcuse and Max Horkheimer who mounted rigorous critiques of scientism, reductionism, and positivism in their works. Lastly, O’Neil could read my co-authored work Decoding Liberation: The Promise of Free and Open Source Software, a central claim of which is that transparency, not opacity, should be the guiding principle for software design and deployment. I’d be happy to send her a copy if she so desires.

Dear Men, Shut Up About ‘Due Process’ Already

From sea to shining sea, on social media pages nationwide, brave men are taking up cudgels on behalf of their brothers-in-sex-and-gender, the ones whose lives are facing ruination because of this country’s #MeToo moment, as accusation after accusation of sexual harassment and assault issue forth from women who’ve previously remained silent. In each case, their defense takes an exceedingly simple form: it is to insist on ‘due process,’ to assert that every ‘accused’ has a ‘presumption to innocence,’ that they are ‘innocent until proven guilty,’ that they fear this business of identifying the men who harass and assault in impunity is all too likely to morph into that most dreaded of social epidemics: the witch hunt. Cease and desist, they say; let us wait till ‘the facts are in,’ till a ‘trial’ has taken place and ‘guilt’ has been conclusively established.

There are several–deliberate, I suspect–confusions at play here. Most prominently, this kind of response confuses the standards for a criminal conviction by the state in a court of law with the usual evidentiary standards that underwrite our usual social judgments of misbehavior. A courtroom furnishes one epistemic context; it addresses the imbalance of power that exists between the state and the accused, and puts the burden on the state to prove its point. This standard of proof is relaxed in civil cases, which only require a ‘preponderance of the evidence’ and do not require guilt to be established ‘beyond a reasonable doubt.’ Our day-to-day social encounters furnish yet other epistemic contexts; within them, we are, on a daily basis, subjected to ‘evidence’ of varying  levels of reliability, submitted by sources whom we trust to varying degrees; we act on the basis of these sorts of claims, assessing them using our socially acquired and developed skills of evidence evaluation; we often act on the basis of incomplete or only partially verified evidentiary claims; indeed, we have to, for stasis and inaction are not options more often than not. That is, we do not sit around, waiting for the standards of a criminal court to be satisfied before we act; social ends, desirable ones, have to be met.

Critical legal studies scholars have, for a long time now, identified one dishonorable ideological function that the law and its institutions–among which is legal language–play in our society: the establishment of a kind of ‘rationality’–the legal kind, which ostensibly aspires to the value-free, fact-laden-and-dependent kind of reasoning followed in the sciences–which can then be used to discredit other kinds of reasoning. The invocation of deployment of criminal law’s standards of evidence and its methodology for determining ‘guilt’ in social contexts outside of courtrooms is a good example of this kind of ideological maneuver. This invocation is particularly problematic when it is realized that courtroom deliberations themselves are anything but value-and-bias-free; determinations of guilt in courtrooms are as socially and politically riven as those that take place elsewhere; it is just that legal decisions lay claim to a presumption of having cleansed themselves of prejudice thanks to their supposed circumscription by ‘legal method.’

This particular technique of obfuscation has a long and dishonorable history–and it looks likely to continue for the established future. After all, maintaining this confusion is necessary for the maintenance of established power relations and for the continuance of bad behavior by serial offenders.

Hypocrisy And The Unequal Weighing Of Political Preferences

‘We’ are shocked time and again by the hypocrisy and political incoherence on display: Trump voters help elect a man who seems to act against their economic interests; they prop up a serial sexual harasser and abuser even as they claim to be fine, upstanding, family types dedicated to stamping out immoral behavior of all stripes; Republicans speak up for Roy Moore, a man accused of the sexual abuse of a minor, even as they claim to be the defender of religious family values; every new evidence of political scandal and misbehavior on the part of this administration is met with a shrug of the shoulders from the Republican faithful; and so on. (I have listed merely a selection of those examples that occur to me as an occupant of ‘this’ side of the political spectrum; the ‘other side’ will be able to supply some of its own.)

Such seeming incoherence is anything but; accusations that those who hold such views are hypocrites or inconsistent rest on a widely mistaken view about how political subjects rank their political preferences and value their political goods: it is assumed that citizens assign a ‘flat’ ranking to their political preferences, that they assign the same value to all perceived political goods, so that  a failure to provide one political good is as damaging as a failure to deliver another political good. A moment’s reflection will show that this is not the case. None of us rank our desired political goods as equally valuable–this is precisely why our political parties of choice send us survey questionnaires in election season, asking  us to rank our political priorities so that they may better focus their limited resources on pursuing those agendas of most interest to their constituents.

Viewed in this light, the seeming ‘incoherence’ or ‘hypocrisy’ of our political opponents becomes more understandable; they are not any more unprincipled or inconsistent than we are; failure to sever a political alliance is not evidence of political dishonesty; rather, the seeming offender has not committed any truly ‘deadly sin’ just yet by failing to deliver a truly valuable political good, one ranked much higher than the less-worthy ones that have not been delivered. If Donald Trump ‘grabs pussies’ and stuffs his family’s coffers while ensconced in the White House, this is of little import to a constituency that simply does not rank respect for women or financial propriety as important as the rhetorical or material protection of an established social order of say, ‘whiteness’ or ‘Judeo-Christian nationalism’ or anything else. If Donald Trump and the Republican Party can be perceived as continuing to supply those political goods, ones granted a weight orders of magnitude greater than that granted to say, the protection of women’s rights to live their lives free of harassment, then all is good. Politicians are not perfect; they cannot ‘do it all’; but if they do what we most want, we are willing to overlook their ‘minor’ failings. Especially if paying attention to those ‘minor’ failings will compromise the delivery of the truly important political goods.

There is a method to the madness.