Computers, Privacy, and the Constitution February 2, 2021, 3:15pm EST

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1. Constitutional History Informs Constitutional Interpretation Somehow

The balance between "originalism" and lunacy, balanced by the balance between "the living Constitution" and "the arbitrary Constitution." How to investigate original meanings without being ruled by the dead hand of Alexander Hamilton.

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In the recorded lecture you mentioned our task is to understand why words are, rather than what words are. I agree with this approach but sometimes wonder if we don’t fall in the trap of anachronisms. It strikes me that in order to understands why words are we must assume that we can know why they are to begin with. Can we?

No, history is an imperfect art, as law is. We work in the humanities, and we interpret what we think we know in order to reach beliefs about why we know it. But imperfection is not a barrier to the achievement of better justice and the abatement of evident injustice. So, as Scott Fitzgerald says, we beat on, like boats against the current, borne back ceaselessly into the past.

I'm not a fan of originalism for a few reasons but one is that its advocates seem particularly susceptible to the Motte-and-bailey fallacy. (https://en.wikipedia.org/wiki/Motte-and-bailey_fallacy: 'a form of argument and an informal fallacy where an arguer conflates two positions which share similarities, one modest and easy to defend (the "motte") and one much more controversial (the "bailey"). The arguer advances the controversial position, but when challenged, they insist that they are only advancing the more modest position.'). This makes it hard to have a good-faith discussion about the topic with someone - the form of "originalism" they may defend is not the same as the form you see in SCOTUS opinions. What's the best way to bridge this gap?

In order to have a better conversation? Lawyers use words purposively, so if you can explain the purpose of the bridge (to go along with the architectural metaphor of castellation) I can better answer you.

Not so much a question but a thought: I think I would agree that we are not being ruled by the dead hand of AH as evidenced by the fact that the people of the 18th century didn’t even know or imagine what todays technology is or could be - so understandably there must be some deviation from the intent of the people of the 18th century, while we are still bound by history in the fact that we interpret a document written in the 18th century at all. Part of this reminds me of the government being constrained by their own devices. We, the people, are constrained/bound/following history all while still transforming it.

Yes, I think that's an idea lying parallel to the idea I was expressing myself in laying out the theory of constitution-reading in use here.

I'm intrigued and mostly convinced by the idea that the 'Living Constitution' v. 'Originalism' split is as you said a 'confection'. I feel like most serious judges see it that way too, but that it survives because for at least the last 40-50 years it's a reasonably accurate litmus test for certain political viewpoints and a useful smokescreen that keeps judges from directly handling those viewpoints. Will the split only go away when it becomes a much less accurate litmus test?

And when the acidity of the solution in which judicial appointments are soaked is better titrated.

2. Sentence-Focused Reading

How to read the Bill of Rights like a human historian.

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As mentioned in the lecture, sentence focused reading in to understanding constitution makes sense as the grammatical structure is implicit in our effort to make sentences which retain our ideas but doesn't this in a sense lend itself to the originalist approach of interpretation?

Well, an originalist would be well-advised to try to read as the writers wrote, but the essence of originalism isn't fidelity to language, though it claims to be. The essence of originalism is a willingness to live with a less relevant constitution in order to avoid the messy "political" claims of the present. My point precisely is that this is not a theory of constitutional interpretation, it's a theory of constitutional stability.

Putting aside the follies of clause-by-clause constitutional analysis, given today's courts, do you think the strongest case for a revised theory of the Fourth Amendment protection lies in the word 'secure'? In a Part Four article from Bruce Schneier, he mentions Jed Rubenfeld's offering of a 'security' test as an alternative to the focus on expectations of privacy in Katz. I feel like the potential of that test might get closer to the real idea underlying the Fourth Amendment as explored in the lecture because it might help broaden the focus on what kinds of general practices invade the security we feel. Or would this just substitute one test for another without changing our relationship to the state?

It's an improvement. Like much of the thinking of Jed Rubenfeld, it partakes of cleverness without real contact with practicality. Jed, like many a Yale law professor, is extremely smart in an ineffectual way. But with some real knowledge and precise intentions behind it, I too think this is the best way to go. I'll try two weeks from now to work it out as best I can, and it still falls calamitously short.

Thanks, looking forward to more then!

As the Founding Fathers wrote the Constitution in a context where they could not foresee the world we live in now, history is important to understand their initial intention. But can we also think that grammar and English language have a history too and the sentences written back then might not have the same (grammatical and semantic) meaning as we read it today?

Yes, or words, like"search" and "seizure" could have changed meanings utterly, which is even more important than the possibility that we use commas differently, or---pace Donald Trump---tend to eschew random capitalization. As to those differences, my point is that we are trying to read 18th century language in an 18th century way in order to find MEANINGS rather than denotations, by interpretation placed atop our reading, which can then be placed in dialogue with circumstances. That's a different kind of stretch in some places than in others, which is why Part Four is a tragedy and Part One is a comedy, for example.

I see, thank you!!

3. Yes, Reasonableness is a Circular Standard

Why that doesn't mean what it seems to mean.

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What sort of guideposts do courts use when analyzing society's expectations? That seems so broad and amorphous to me—much harder than a 'reasonable man' analysis from Torts. How do we prevent it from being a one-way ratchet towards less privacy?

That's the right question, undoubtedly. In order to answer it persuasively, we have to have two perspectives. Consider the Eighth Amendment prohibition on cruel and unusual punishment, which I discussed in the talk. It won't do to say that 18th century understandings of the 17th century root of the phrase---which appears in the English (statutory) Bill of Rights in 1690, in response to the conduct of criminal justice under James II before 1688---are irrelevant now, but the lunatic originalism that I was criticizing in Bob Bork as a student is obviously inadmissible. The "evolving standards of decency" approach that Thurgood Marshall and Bill Brennan attached to their view on capital punishment, is an effort to present something that is neither entirely about then or about now, but about some process of change that can be described with responsible rigor, and that nonetheless provides flexibility in the meaning of cruelty and novelty. The same approach, which is far more difficult with respect to the reasonableness of forms of insecurity in persons, houses, papers and effects, has to be followed here. The Court needs to do more than say "you didn't have a reasonable expectation of privacy, so you lose, and from now on everyone loses," just as it cannot hope to analogize every case to phenomena of searching known in 1790. Indeed, as I said and as we will explore further over the next two weeks, the very meaning of the words "search" and "seize" are different than they were in the 18th century, so our theory of constitutional evolution here has to be even more powerful and subtle than the one explaining the evolution of our ideas of cruelty in punishment.

What is the ideal standard for privacy in the context of warrants? It seems that any measure of privacy "expectation" is unuseful because of the extent of control that intelligence bodies have over the infrastructure of surveillance. Informed expectations can no longer be grounded in instinctive concepts of private vs public, they're largely a product of whatever restraint that states and private entities exercise. If this is the case, should the guidepost change from the reasonable expectation of privacy to the reasonable, informed desire of privacy?

No, because that will give people unequal rights based on their level of knowledge or articulation. "Expectation" is supposed to be some form of objective entity, unvarying sufficiently to give something like "Equal Justice Under Law," as it says on the pediment of the building. That's not the way the 4th A worked out in the late 20th century, but I think the reasons for that failure are contingent, not essential.

I'm struggling to understand how one creates a more subjective standard than the other. "Expectations," in a sense of what one anticipates, varies with an individual's general awareness and past interactions with law enforcement, for example. However, we still create a single, constructive standard for what one reasonably anticipates ("expects") being private or public. I don't see why we couldn't just as easily (or just as challengingly) construct a single level of reasonable desired privacy. Why not say that an informed and reasonable person would want generalized privacy protections akin to climate change/environmental regulation, so that should be the standard we apply when assessing warrants?

Because warrants are not issued based on the wishes of those they are served on, perhaps?

Of all the bill of rights, this balance between original understanding and flexibility in the face of new realities seems most important to the Fourth Amendment: the surveillance technologies of today are so qualitatively different than that of the founding—much more it seems to me so than guns, means of distributing one's ideas, mores on what is cruel and unusual, et cetera. Perhaps that goes without saying in a class about these issues, though. When you say that circularity of the reasonableness inquiry "doesn't mean to mean what it seems to mean," what do you mean?

Ah, that's the secret, I guess. I mean that if we have an historical theory of reasonableness, showing how it is composed over time from past understandings and new experiences, if we can give content to "reasonable" that doesn't depend on polling data, we can avoid the circularity implicit in common law process applied to the idea. As was said above on the pad, this isn't like the "reasonable" "man" as a vehicle for running over the plaintiff in a torts case. We are asking how much security of self human beings will have in a world of the parasite and the possibility of perfected big data despotism, ala the CCP's view of the Chinese peoples' future. That's not a matter of counting tweets or taking phone polls, and we need to have a method of reasoning about it which is as sophisticated and sensitive as the problem itself.

I see, thank you! That makes much more sense. Is this sort of methodology associated with any justice or justices in particular? Or is it more widely adopted? Obviously the supreme court does not conduct opinion polls, but do they perform the kind of historically informed analysis you describe here, or is this what we wish they would do? I'll have to re-read the cases with an eye towards this.

You will find that an interesting process. Over the next weeks, I will be trying to help you.

Would the task to define 'reasonableness' be similar to the one to define 'legitimate'? At the end of the day, will judges always have a considerable degree of discretion in the application of the reasonableness test to the facts of individual cases?

As I tell my first-year class, I don't think the word "legitimacy" has any meaning at all, it is---in Felix Cohen's sense---pure transcendental nonsense.. With respect to its use in the Fourth Amendment, I think "unreasonable" can be saved from that fate, but unfortunately that's not enough.

4. The Political Economy of Thuggery

Our localism, our federalism, our traditions of criminal procedure, why warrants are what it's all about.

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I found the concept of warrants as a temporary conscription of local officials to engage in state thuggery very interesting. To me, that idea is borne out by the fact that the highest-thuggery situations in modern policing are those with very little inherent warrant protection. I'm thinking specifically of traffic stops in Ferguson, and similar situations. Am I understanding your point?

Once society has large-scale public paramilitary forces to do all its work, equipped with deadly force and capable of publicly kneeling on a man's neck until he dies or shooting a woman multiple times in her bed while she's sleeping, the political economy of thuggery is utterly transformed. The transformation of those conditions, which alters the meaning of the Fourth Amedment completely in the 20th century, resulted in fundamental changes in both directions: Mapp v. Ohio applied the federal constitutional limitations (and the judicial power of counter-enforcement) to all the empowered local systems of policing, but Terry v, Ohio also established the fundamental unimportance of the warrant in the policeman's life on the street, where "articulable suspicion" is the line of reasonableness thereafter, rather than probable cause. Now we layer on that unstable outcome a new transformative stage, in which "search" and "seizure" are newly defined and the balances of power are unrecognizable. Under this weight, I will submit over the next two weeks, the Fourth Amendment breaks and becomes mostly useless.

Got it, thank you! Does this lead us to thinking about federal and state law enforcement somewhat differently, in that local cops are mostly the ones "on the beat" taking advantage of Terry stops, conducting "community policing," etc while the FBI conducts their investigations in a targeted manner from afar? At the same time, though, it seems federal law enforcement has played the role of "secret police—" the FBI's activities during COINTELPRO against civil rights groups feels like to what 'secret police' would get up to.

Section 1 of the Fourteenth Amendment settles this for us, by imposing the same standards of due process and equal protection on everyone. Without Mapp, the despotism of the FBI in the Hoover Era goes unchecked, even though they are the ones whose actions were always constrained, because the cases are made elsewhere, and the constitutional rules must then be uniformly applied. Am I responding to your question, or did I misunderstand?

Yes, you are. I would be interested to read more about the historical development of American policing itself, is there anything you recommend on the topic?

There is no good one-volume history of American policing, so we are in the world of monographs and general histories. If you're serious about the project, talk to me in office hours or send email and we'll build a reading list. (Too bad my bibliographies are in the office I can't go to: this is one of the ways in which the epidemic makes me a worse teacher.)

5. Private Complicity With Searching and Seizing

Why the tar and the feathers. Why subpoenas work.

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What's the standard to determine the scope of individual privacy in which the government cannot interfere without having a warrant? For instance, since you're in the public sphere walking on the street, security cameras do not violate the 4th Amendment?

Government cameras? With or without facial recognition software behind them? Used for what purpose, beyond the creation of evidence in criminal process? Your question needs refinement to have specific answers, or to suggest specific areas of inquiry for us.

Government cameras. In the event of a crime, those records would be checked if the suspect's around. With or without facial recognition.

But each of those variables will wind up affecting our analysis. That's why common law constitutionalism works the way it does.

After seizing a cellphone with a valid warrant, can the police force the person to enter his passcode to access the phone content? If the warrant doesn't "warrant" this type of access, wouldn't that restriction make the warrant meaningless given the wide use of phones in crimes?

No. Hence all the cases. And why would you carry an object your face can unlock without a passcode, I wonder. (Indeed, of course, I wonder why you are carrying such an inherently insecure device at all, but apparently there's no point wondering.)

So, is the content of a phone more private than one's home? Is this the reason you can't be forced to unlock it?

I don't think so. But you might suspect that from the cases.

Regarding some articles on PART FOUR, to defend a controversial Internet pornography law in court, the Justice Department has demanded search logs from Google, Microsoft, Yahoo and America Online. I am curious that can I reject Google, Microsoft or Yahoo to collect my searching records and our digital data ex ante, so as to prevent them from providing my data to third parties and to governmental departments?

That depends on the data. But if you are wondering that, why don't you wonder why it's about stopping them, instead of starting yourself down the road of not needing them?

I use duckduckgo now. Also, if I searched some key words for curiosity rather than attempting to commit a crime, how can they distinguish them? On this, a thought: Venmo is not a very secure app. A few years ago, in tracking down a terrorist group known as "Idek", they would suspend the accounts of everyone who typed into the message bar on a tranasction "idek," which is slang for "I don't even know." In this case, at least, committing a crime was not properly distinguished from other intentions.

what do you mean by "secure"? they're probably not particularly secure as far as things go, sure, but that sort of extremely coarse filter says to me that they're kind of paying lip service to the idea of blocking illegal transactions (i've heard other reports of where certain words will get your transaction and account at least temporarily suspended). this sort of extremely naive censorship is absurd (https://en.wikipedia.org/wiki/Scunthorpe_problem is a somewhat-well-known issue that venmo 100% would have been aware of) I believe Venmo also has an extremely sensitive trigger finger because they are subject to all kinds of banking/financial service regulations—and most importantly don't want to violate OFAC sanctions, for which I think there is strict liability. I guess what I was saying was that this seems more like a cover-your-ass thing that they don't have much interest in actually solving. Theoretically those using the "idek" keyword probably are not talking about the terrorist group (those involved would likely disguise it better)? but who knows

BTW: Several articles under Government Subpoenas for Search Records (of Part Four) are unaccessible.

You could either replace the links with ones that work (it's a wiki, after all, and you can edit) or you can tell me.

Great, I will replace the links.

To my understanding, customs officials can search our laptop without reasonable suspicion at airports. If the data is stored in cloud storage and accessible via that laptop and internet browsers, do customs officials can search the data? Unlike data stored in laptops, the data stored in the cloud did not "physically" in airports.

Why do you carry a laptop across a border in searchable condition? I would never do that.

So is the alternative to obtain a new laptop whenever traveling abroad? Some law firms provide their attorneys with temporary phones and computers when traveling to China, but still seems excessive. In any case, is TSA legally able to search data?

No, that's quite unnecessary for this purpose. Making it impossible for them or you to open the laptop's storage on the border without having to throw the laptop away thereafter is trivial. Disposable hardware is useful for a different purpose, which is when you carry a laptop into a state without the rule of law and capable of making implants while you are there that will work against you if you bring the laptop home. That's why I began the project of de-Chroming Chromebooks, to have superb dirt-cheap hardware that could run free software securely inside China, and be left in the hotel wastebasket, with no bits in it, on the way out of the country. But avoiding border searches is much simpler. As to the law, why would you not assume that even US law does not protect you? You know that the law of no other state protects you under those circumstances, so why bother making legal distinctions when what you need is something that works everywhere, because every border has two sides.

6. Shoshana Zuboff's "Other Coup"

For those who want to talk about modern day problems of public and private power, the smartest writer who just can't write short has plenty to say.

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My understanding of Shoshana's article was essentially that the intermingling of public and private power have created this coup of misinformation that has inevitably become a threat to democracy. How then, can the government protect it's citizens (as it is their duty in a sense as we spoke about last week) from misinformation? I am wondering how can one tiptoe around the 1st amendment, in order to uphold the 4th?

One wouldn't, in my view, given that as I see it the First Amendment is full of promise and the Fourth is mostly and tragically obsolete. But I don't see the conflict. She's not writing about search and seizure or surveillance at all here. She is asking how government can achieve a positive duty, which is to protect democratic self-government against her "epistemic chaos." That raises the central issue I will try to address in Part One: what is the CONSTRUCTIVE responsibility of government in ensuring that there is no law that abridges our expressive and intellectual liberties? On that basis, I will ask whether the immunization of a small number of powerful entities from legal responsibility (as in section 230 of the "Communication Decency Act" is an unconstitutional interference with the freedom of expression.

Zuboff writes of the fourth and final stage of an 'epistemic coup:' 'The machines know, and the systems decide, directed and sustained by the illegitimate authority and anti-democratic power of private surveillance capital.' I understand stage three (epistemic chaos, where we are now), but I have a hard time understanding what the fourth stage looks like, and how that is distinct from stage three. I think I may need to reread her 'You are Now Remotely Controlled' piece. But if anyone has any insight, it would be much appreciated.

Consider yourself Uighur in Xinjiang. Did that help?

Yes. So it is state power exercised with the benefit of this total information access attained by private surveillance capitlaists, or similar. When I first read the phrase, I thought it more referred to a state where we are controlled in a meaningful sense by private technologists, but without state intervention.

Zuboff states: we may have democracy, or we may have surveillance society, but we cannot have both. A democratic surveillance society is an existential and political impossibility. Do you think this is an either/or?

I am teaching a course about that, and you are in it.

In my understanding, a surveillance society is one with authoritarian tendencies, which is, of course, at odds with a democratic system. However, while extreme surveillance is a threat to democratic institutions, I don't think one necessitates the complete destruction of the other, creating, as Zuboff puts it, an existential impossibility.

But perhaps her point is not essentialist but historical or evolutionary: such a state is no longer in a position to defend democracy against itself and its successors, nor can democractic forces fight effectively the transformation of the society, so eventually democracy loses. If that's what she means, what do you think?

I think that's the clearer take. Democratic forces cannot fight the transformation of a society characterized with enormous information asymmetry by virtue of surveillance. I agree that the monopolization of knowledge, or the epistemic coup, as Zuboff describes it, expedites this process and weakens any plausible democratic response. Though, it makes me wonder if there's a 'point of no return.' If we were able to snap our fingers and scale back the surveillance society, is its effect on democracy reversible? At what point, if any, does it become irreversible?

7. Other Questions

How did we get lost in the 17th century and whatever else is top of your mind.

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How have people waiting in line for airport security typically reacted to the card that you handed them, raising the reasonableness question?

I think you can probably hypothesize every form of reaction I received, across the spectrum of hostility, indifference, support, and an effort not to notice me. But all of that ended seventeen years ago, because I no longer saw the point of the effort.

How can I join your office hour via video conference? Hi you look on the pad tomorrow for the videoserver link. You mean the link in the main page? It gives me this warning: "Your connection is not private" Then I can't move forward.On most browsers there is a way to continue past that screen, typically a button on the page that says something like "advanced options" or similar. See if you can change the initial "https://" to just "http://" (without the 's')Yay! Thanks for "s" adjustment, it works! (No advanced options, interestingly)

That's because this part of the advice consisted of using the HTTP protocol, instead of secure HTTP, which is https. By not using secure connection, you keep your browser from complaining that the identity certificate used for HTTPS connection was signed by me, instead of by some identity controlling entity. Long discussion we don't need to have right now, but the advice you received will always solve that problem.

Why isn't US v. Carpenter listed as a case in the Theory of Part Four?

I'm not sure why that isn't obvious. Can you help me understand the question better?

I guess I see Carpenter as the latest major case addressing the 4th Amendment's application to government surveillance technology, which the cases for Theory all revolve around. I wondered the same; while Carpenter does not deal with surveillance as directly as some of the others, GPS technology contributes to surveillance, so I also thought it would be relevant. Maybe it's that Carpenter is really a serious step away from Katz' reasonable expectation test and towards something better, with more fidelity to the full 4A guaranty?

Or just a narrow punt? Yes, maybe just that. But at any rate, have we established why it is there or not there? Does that matter? I don't think Carpenter will go undiscussed, but if I've made a cataloguing error about where to place it, let's add it to the section. (It's a wiki, you can edit every page.)

I'm not confident enough to diagnose a cataloguing error here. But I'm very happy to add it to the wiki.

I must have missed this—what are you referring to when you say 'the parasite with the mind of a god?'

A phrase I use to express the condition in which we now live commensally with a digital organism that metabolizes human behavioral information and secretes hormones that produce more "engagement," that is, behavior data. This digital organism---whose organs are Alphabet, Facebook, Twitter, Tencent, Alibaba, and their kin and components---now possess detailed data about the behavior of billions of human beings, moment to moment, and a synoptic view of the largest patterns in human behavior that are not visible to any other people or entities in the biosphere. The only word that human beings have ever had for this absolute knowledge, from the smallest to the largest, is "the mind of God." So we have now created and live with, as I say in my current writings and speakings, a species-wide nervous system in which dwells the parasite with the mind of god. Those who took last term's course are familiar with this idea, perhaps tediously so. You could listen to audio from last term, or, more sort-of tersely, my talk at Re:publica 2019 in Berlin: https://www.softwarefreedom.org/news/2019/may/07/-moglen-at-republica19/

I will check that out—thank you. Perhaps it answers my next question: does the digital organism or its human creators really "understand" our information in a meaningful way, or do they have data but not knowldge?

Today, tomorrow, or the day after? All of this is, as I said elsewhere, After the End of Forgetting.

It seems to me (especially at facebook) that much of the 'feed' is generated by machine learning algorithms doing their own thing with potentially little human oversight.

The parasite doesn't need human oversight. I think you're not yet tediously aware of my underlying point.

Also, wasn't/isn't Palantir's big product a sort of centralized hub for the government to access, in one convenient place, all of this information collected in disparate repositories and held by different custodians? Does that make them a parasite on the parasite with the mind of a god?

Roughly, yes: another organ. A threat actor with access to the parasite's biology. What you like...

What was Robert Bork's response to your question regarding cruel and unusual punishment?

To ask who I was and to throw me out since I was not enrolled. Not his finest moment, that great intellectual feaster. He had a narrow and authoritarian side, as well as more charming ones, and I brought it out on that occasion.

One question which lingered from last week. What was Moxie Marlinspikes reasoning to prefer centralization to a federated system?

Moxie thinks that a centralized service can respond to security problems and add features to improve usability immediately, affecting everyone, which federated services cannot. This is right The question is how to balance that value against disadvantages and benefits of federation. As to that, I think he's wrong. But it's a wonderful disagreement so long as we are doing both.

I am not sure if you have heard; however, a lot of Columbia students have expressed their distain with how Columbia has handled COVID etc. Some complaints are Zoom fatigue, lack of a reading week, and strict adherence to a curve during this pandemic. Do you think students could benefit from this style of teaching as an option?

If I didn't, why would I have invented it? Over years of thinking about how to respond to the unforeseeable occurrence I considered inevitable, I reached certain conclusions about the necessary pedagogical innovations. I think our collective experience is confirming some of my conclusions and requiring the revision of others, but I do not think the obvious improvizations adopted by teachers and schools that didn't see this coming have shown that my research and development was conducted on the wrong lines. What so you think?

I think this is right - many people did not expect this and there was a hurried attempt to find a quick solution. It is evident that the quick solution is not the best one. Just thinking about how or what to do to get Columbia on board.

Forget it, not happening. Zoomschool serves the purposes for people who think the epidemic will be over soon and everything can be forgotten as we return to "normal." It will take four more terms before that begins to fray. Concentrate on making your own education the best itr can be for you and don't get lost in the quicksand of trying to overcome others' repression of cognitive dissonance in an age of utter cognitive dissonance.

How would you approach these issues if you were a law student right now?

As I say above. You're here now, you've paid, and the task is to help you learn and enjoy learning as best we can. If teachers will help, good. If they won't, do what you need to do to achieve your learning goals and forget them.

Would you advise a prospective law student to postpone enrollment because of the privacy violations you must accept in order to graduate? (Zoom attendance, using Canvas, etc.)

This is not the issue of the epidemic, as to which I would indeed say that postponement should be considered. This is the longer term question of what to do about disrespect for privacy in learning. About that, I would advocate that those who see the issue as one of personal and professional concern to them should use it as a fulcrum in the learning process. I am considering, post-epidemic, building another teaching practice, like mt Software Freedom Law Center, which I would use in the next and last phase of my professional life to train a cadre of educational privacy lawyers who cut their teeth in school-to-work, and then continue in that ptactice to make universities and other systems pay for their sins. I think it would be a fine version of my idea of school-to-work training practices.

There is not yet any 'educational privacy lawyers' today is there? A part from those who work on privacy issues related to students' educational records and the Family Educational Rights and Privacy Act (FERPA)?

Do you think administration would listen if students advocated for adoption of less invasive technologies?

No. A university official well trained in the party line told me just before the epidemic started that of course the choice of Canvas was permanently irrevocable. The future of this university is understood by its present leadership to involve the data-mining of the community for monetization and the "improvement" of the "education experience."

(It seemed that you referenced MIT being ahead of the curve on this in one of the previous lectures or Etherpads.)

Yes. MIT is not Columbia, indeed. Indeed, MIT is in many of these respects unique.

I am also curious of any suggestions? It seems the zoom school problem was not good fix and columbia couldnt care less. Thank you!

Well, I have indicated that I agree with both parts A and B. Because your time here is limited, I therefore think that the urgent problem is how to do as much for your learning under those conditions as possible. Not having any truck with the popular bad answers, and trying to instanbtiate better ones, I can do. The rest WE can do, but I cannot do alone.

Was wondering if you could elaborate on "four more terms" above

I do not think that they will get their "normal" until 2022 fall, by which time some of the changes will have become irreversible and the new "normal" will not be like the old "normal" in ways that will require more long-term response. They will then be unable to depend on the "we didn't know and we were improvising" narrative, so a deeper intellectual reckoning will begin. Indepedent of whether my forecast is right, have I satisfactorily explained what I am forecasting?

I think so, thanks. was startled by the idea of zoomschool continuing through spring of 2023

Technical question - how can I access etherpad from previous classes? I'm also having trouble finding my journal, even though I was able to find it via index before.

On the second, there's a search box in the upper right hand corner. If you type your wikiname there, it will carry you. You could also compose the URL for yourself directly: http(s)://moglen.law.columbia.edu/wiki/ComPrivConst/YourNameJournal I rarely bother to use links, I just type in the address bar. But that's me. On the first, to make this easier, I'll create a ClassPads page and keep it up to date.

Thank you very much.

How did we get lost in the 17th Century?

You took a course with someone who knows a lot about the 17th as well as the 21st century, and add/drop period is over.