The Contents of One’s Own Mind

This link goes to a fascinating little explainer by Popehat on Twitter.  Excerpted here and lightly edited for readability:

The Fifth Amendment says you can’t be “compelled in any criminal case to be a witness” against yourself. The government can’t compel testimony from you if it might incriminate you — at least not without a grant of immunity.

One of the issues the courts have had to confront is this question: what is testimony? Is a sobriety test testimonial, especially if you have to talk? A blood test? Mandatory filing of tax returns? A handwriting sample? And so forth.

Now, pre-existing items and documents are not testimony. It’s not testimonial if you’re forced to turn them over — in the abstract. But there’s a nuanced, complicated exception. Sometimes the “act of production” can be testimonial.

The idea is that if the government subpoenas you for documents, and you turn them over, you are admitting the existence, authenticity, and your possession of the documents — and those may be incriminating. So even if the documents aren’t testimony, producing them might be.

So years ago, the Supreme Court decided that sometimes, if it wants to compel production of documents, the government will have to offer what’s called “act of production immunity” — they can’t use your production of the documents against you.

Then, in 2000, the Supreme Court expanded the doctrine in the case of Clinton associate Webster Hubbell. The case involved very broad fishing-expedition style subpoenas from Independent Counsel Ken Starr.

The subpoenas were very broad — they asked for things like “any and all documents reflecting, referring, or relating to any direct or indirect sources of money or other things of value received by or provided to” Hubbell.

The Court found that because of how the questions were framed, identifying documents in response to them was “the functional equivalent of the preparation of an answer to either a detailed written interrogatory or a series of oral questions at a discovery deposition.”

Put another way, rather than simply physically turning over documents, Hubbell had to use “the contents of his own mind” to select documents responsive to the government’s broad fishing questions. That made his response testimonial, and thus protected by the Fifth Amendment.

Agency and Trust in a Digital Democracy

Last week I was on a panel about ‘Democracy and the Digital Commons’ at Suffolk University.  At the start of the panel, each of us gave a 5-10 minute talk to help frame the discussion.  While there’s no transcript of the panel itself, here are my notes for the intro.  (Quick context: each of us tied our talk to the Boston Marathon bombing and in particular Reddit’s response to it.)

The internet was supposed to bring about a new world, a better world in which everyone had a voice. With the rise of blogging and social media, the machinery of publishing was being democratized. And more democracy is always good, right?

Well, not necessarily. Democracy has its flaws and its dangers, just like any other system of governance. As Winston Churchill said, “Democracy is the worst form of government, except all the other ones that have been tried.”

I want to focus on one particular long-understood flaw of democracy, which is this: in a democratic system, every voice counts equally, even though some may be much better educated on a given topic.

We can view what happened after the marathon bombing through this lens. Reddit led a crowdsourced manhunt – another way of saying that is that they led a democratized manhunt. Anyone, regardless of their experience with intelligence investigations, could contribute to the discussion. It’s not surprising, then, that the investigation went awry – that the crowd failed to consider how misidentifying suspects could harm innocent people, or how a public manhunt might influence the behaviors of the perpetrators. The vast majority of the people participating had no training or experience in the matter, so why would they know?

Here’s a question for the room. A loved one of yours has been mysteriously murdered, and you have to choose who investigates, one or the other – the local police, or a community of people on Reddit. Which do you choose?

Now I want you to imagine that the prime suspect is a local police officer. Who you want to investigate – the local police, or a community of people on Reddit?

Here we have a great tension. It’s better and more effective to delegate power to those with the expertise to use it. But it’s only better and more effective when the experts act fairly and in the best interests of those who’ve delegated power to them. And there’s no way to be 100% sure that they’ll act in your best interests. This is called the Principal-Agent Problem.

We can see the Principal-Agent Problem at work with the issue of misinformation more broadly. Techno-Utopians have championed social media as a way to make every user a publisher. But there’s a real value to the training that journalists get. There are cultural standards they internalize and then enact, including things like verification processes, disclosing conflict of interest, and refusal to plagiarize or fabricate quotes.

I for one am relieved to be able to delegate this work to journalists at ProPublica or the New York Times or the Boston Globe. I may not agree with what they chose to report on or the opinions in their editorials but I trust that they’ll follow journalistic norms. I trust them to act on my behalf, my news-gathering agents. But not everyone does. There’s been a concerted effort for decades, which has risen to a fever pitch over the last few years, to portray them as biased, as liars, even, lately, as traitors deserving of violence.

If we stop viewing journalists as our “news-gathering agents”, who replaces them? We’ve got to trust someone to gather our news, because I sure am not capable of doing it all for myself. So who do we trust instead?

One response is, “We’ll trust those in power, we’ll trust the President”, which, no matter what party you belong to should give you pause.

Another, more optimistic response, is to say, “The crowd! We’ll trust the crowd.” In other words, screw agents – let’s all be principals.

But what does the crowd give us? It gives us clickbait passed around every corner of Facebook. It gives us waves of abuse and harassment on Twitter. It gives us lies that spread faster than truth.

It turns out this result is not very satisfying! So there are calls for someone to exercise power and try to fix these problems. People ask Facebook to stop the spread of misinformation. They ask Twitter to stop abuse on their platform. And in doing so, they’re asking the tech platforms to act as their agents.

The tech platforms are hesitant to do this, I think rightly. “Who are we to determine which journalists are legitimate and which are not?” Facebook asks. “Who are we to determine what’s rudeness and what’s abuse?” Twitter asks.

But if not them, then who? They’ve designed their platforms as a meeting ground of millions of principals rather than a place where people can delegate responsibility to agents. The platforms don’t empower people to address these problems, so the only solution is to go behind the platforms. And behind these scenes, of course, these companies are profoundly non-democratic.

And so you end up with a site like Twitter, where many users feel coerced into letting Twitter act as an agent on their behalf despite having no mechanisms to hold it accountable. So Twitter has power its users don’t want to grant it, and that Twitter itself doesn’t want to use, but that must be used for the commons to remain remotely functional.

So how do we move forward? I have three main ideas.

First, I think we need to change how we design our digital platforms. Web applications are governance systems made of electricity and silicon rather than ink and parchment. When you ban a person from your website, it’s not that different from asking the sheriff to walk that no good rascal to the edge of town. And if we view web platforms as systems of governance then we can see just how naive and inadequate sites like Twitter or Facebook or Reddit are. The use of the phrase “upvoting” and “downvoting” on Reddit seems almost insulting. Users aren’t upvoting a person to represent them in a specific situation or downvoting a proposed policy they don’t want to see adopted. Or over on Twitter – people have been using external tools like shared blocklists for years to try to establish some semblance of collective control that the platform itself refuses to grant them.

Specifically, I think we need to design systems that encourage us to delegate power to those we trust – voluntarily, and revocably. Because we need agents that we can trust to act on our behalf, but we also need ways to withdraw power from those we no longer trust. If we can do this on our platforms, we won’t have to beg for intervention from the people behind the platforms.

Second, we need to nourish existing systems of trust and adapt them to online spaces. A lot of tech industry rhetoric has centered around replacing trust, for instance blockchain is supposed to be trust-free. But humans will always have to trust each other, and we’ve developed some pretty good cultural norms and social systems to facilitate that trust. We shouldn’t just throw them away.

Which brings me to my third point. Our legal system has a solution for the Principal Agent Problem. It doesn’t always work, but it does help a lot of the time. This solution is the concept of fiduciary duty. This is what requires Doctors to act in the best interest of their patients, lawyers to act in the best interests of their clients, and bankers to act in the best interests of their customers. Why not require platforms to act in the best interests of their users?

Nothing we do is going to permanently solve the Principal Agent Problem. There will always be some amount of misinformation and abuse in our digital commons. But that’s not an excuse to turn away from the issue. By thinking carefully and compassionately about these problems we can improve our approach to them.

Power, Judgment, and Love

Back in high school and college, I had friends who offered to do tarot readings for me.  I always turned them down.  “What a dumb idea,” I’d think.  “How could a deck of cards predict your future!”

Then a few years ago, my friend Zandra made the offer differently.  “I use tarot cards to help my brain think about problems in a new way.  Want to try?”  I was still a little dubious, but I agreed to give it a shot, and I’m so glad I did.

Humans are a storytelling animal.  We use symbols and associations to shape our thoughts, actions, values, hopes.  We do this constantly, albeit largely unconsciously.  A tarot reading is just a way of making this storytelling process explicit and therefore manipulable.

All of this is a preface to a specific set of cards I’d like to talk about:

Three cards from the Tarot: The Devil, Judgment, and the Lovers

I’ve drawn these cards together in a few different readings, and come to associate them with a set of ideas and concepts that are very important to me.  These associations are echoed and enforced by the visual similarities in the cards.  Let’s take them left to right.

The Devil

A surface reading of this card might suggest that the Devil is an ominous figure who has enslaved the people beneath him and keeps them trapped against their will.  But I don’t see these figures as slaves.  The christian Devil is a seducer.  The figures have somehow chosen to be there.

But why would someone chose to give up power?  Or rather, why would someone chose to believe they have no power?

In On Killing: The Psychological Cost of Learning to Kill in War and Society David Grossman described a study published by Richard Gabriel in his book, No More Heroes.  A thesis by Janine Wannacott explains it this way:

Gabriel showed that during both world wars, prisoners of war did not suffer psychiatric casualties from artillery attack, but their enemy guards did (1987). The guards were in a position of responsibility, while the prisoners were not. Grossman cites this (1996) and explained that the prisoners had no control over their situation; their living or dying was up to the guards. The guards, meanwhile, were crushed under the burden of responsibility of their own, their companions’, and their prisoners’ lives.

Responsibility can be tremendously stressful. Responsibility for matters of life and death, in murky, uncertain circumstances, can be almost too much to bear.  Put down your burdens, the Devil seduces us.  There’s nothing you can do.  You’re powerless to change this.  You have no responsibility.

In her poem Return, Carolyn Forche stands in a supermarket recounting to a friend her experiences as a human rights activist in El Salvador and explaining how helpless they make her feel.  The friend replies:

Your problem is not your life as it is
in America, not that your hands, as you
tell me, are tied to do something. It is
that you were born to an island of greed
and grace where you have this sense
of yourself as apart from others. It is
not your right to feel powerless. Better
people than you were powerless.

It’s a complicated poem.  I used that last line – better people than you were powerless – to shame myself for years.  We’ll come back to that feeling of shame in a bit.  But for now, I want to focus on the line right before it: it is not your right to feel powerless.

It is not our right to feel powerless because we are not powerless.  The devil lies when he tells us we have no power and therefore no responsibility.  He has seduced us into wearing his chains, but we always have the power to take them off.

So… how do we take them off?

Judgment

This card shows the angel Gabriel waking the dead with his trumpet.  It is time for them to be judged by God.

I just talked about how we imagine we are powerless before the devil.  We also imagine that we are powerless before God.  But unlike with the Devil, we don’t feel bad about it.  It’s humble and good to submit to God’s judgment, right?

If we define “submitting to God’s judgment” as something we do after death I have no criticism of it.  I’m not gonna tell you how to live your best afterlife. But submitting to God here and now too often means submitting to the church’s will, or your local priest’s will, or your parents’ will.  More generally, it means submitting to a set of predetermined rules and values without questioning them.  This can be as tempting for secular people as for the religious.

The power of judgment is our greatest responsibility, because it is the power from which all other powers flow.  After all, we cannot act until we have judged that we should act.  Some people try to avoid responsibility by pretending they have no independent power of judgment.  They say, “I was just following orders”.  Courts have rightly rejected this defense and that’s because it elides the truth: that choosing to follow orders is itself an independent judgment.

We cannot lose or forgo our ability to judge.  But what is judgment?

Some people conceive of it as the simple application of rules to a situation.  Perhaps they imagine a judge, faced with a defendant, who classifies their crime as Crime A according to the criteria in Law B.  But this is not how the judicial system works at all.  Law is messy, ambiguous, full of contradictions and conflicting precedents, constrained by precise language yet liberated by the inherent imprecision of language.  A judge doesn’t color by numbers, she paints.  No wonder attempts to automate judicial decisions have been, by and large, a horrific mistake.

Jeremy Bentham said: “The power of the lawyer is in the uncertainty of the law.”  Without uncertainty there would be no need for judgment.  There would be no need for responsibility, no opportunity for power, no occasion for free will.

Another way of approaching all this is to say that good judgment requires negative capability.  Judgment only occurs in situations of uncertainty and therefore tolerating uncertainty helps us make decisions calmly and compassionately instead of fearfully.  Unfortunately, tolerating uncertainty is hard.

During the Manafort trial, the jury asked Judge Ellis to define reasonable doubt for them.  But it is not actually possible to define reasonable doubt, at least not in the way the jurors were likely hoping:

“The truth is that no one has yet invented or discovered a mode of measurement for the intensity of human belief.” — John Henry Wigmore, Evidence in Trials at Common Law

Most federal and state courts adhere to the “reasonable doubt” standard, but judges have been loathe to define it further. In a 2011 case, the U.S. Court of Appeals for the First Circuit denied an appeal that was based on a trial court’s refusal to impose a definition.

“The term reasonable doubt itself has a self-evident meaning comprehensible to the lay juror,” the appeals court ruled. “Most efforts at clarification result in further obfuscation of the concept.”

The jurors were looking for more rules to help them make their decision. They wanted to submit to God’s will – or in this case, the state’s.  Understandable, but past a certain point no rules are available.  You cannot lay down your burden.  You must judge for yourself.

The Lovers

The Lovers card, visually, is a combination of the Devil and Judgment.  As with the Devil, two humans stand beneath a powerful winged creature, on the left a woman with symbols of fruit and growth, on the right a man with symbols of fire.  As with Judgment, the winged creature is a wreath-crowned angel.  The presence of the angel in a bright blue sky creates an atmosphere of hopefulness.

If the Devil is what tempts us to deny our power of judgment, the Lovers are what helps us to accept and bear the weight of it.

If you look on the right side of the Lovers, behind the naked man, you see the a burning tree which evokes the burning bush through which God spoke to Moses and asked him to take up a great responsibility.  If you look on the left side of The Lovers, behind the naked woman, you see a fruit tree with a serpent which evokes the Tree of the Knowledge of Good and Evil.  The knowledge of Good and Evil is what allows us to judge our own actions as good or evil, so you could also call this the Tree of the Power and Responsibility to Judge.  And with the power and responsibility to judge, the Lovers lose paradise.  They must not only recognize that suffering exists, but that they themselves might be a cause of it.

Thank God they’re not alone.

Love gives us strength to judge and to face the consequences of our judgment.  It eases suffering, repairs relationships, fixes broken systems.  Love pushes us to seek the happiness of our beloved, even if we’re angry with them.  When a loved one judges wrong and hurts us, we want to forgive them, but we require that they acknowledge the hurt and make steps to heal it – first, because this is a sign that they love us too, and second, because the acceptance of responsibility for judgment is a sign of growth, and we want our loved ones to flourish.

The Lovers don’t represent only romantic partnerships.  They represent friendships as well, and familial relationships, the connections of colleagues and neighbors and community-members to each other.  They can represent the relationship of a fan and a celebrity, two candidates running against each other, the people of one nation and the people of another.  The Lovers represent any human connection.  They can even represent our connection to ourselves.

I said before that Carolyn Forche’s poem made me feel ashamed of myself.  I knew about the existence of good and evil from a young age; I have a collection of books about genocide that I began building in high school.  How could I have even this glimpse of the suffering in the world and not dedicate my life to eradicating it?

But the Lovers remind me to forgive: to forgive others for harming me, and to forgive myself for harming others.  This is not an unconditional forgiveness.  It pushes me to work to repair the harm, but in the spirit of growth and healing, not the spirit of shame and punishment.

This philosophical approach to forgiveness is one of many reasons why I dislike our prison system.  How does punishment teach responsibility, judgment, or love?  By taking away an incarcerated person’s choices we decrease their sense of responsibility and deprive them of the opportunity to practice their judgment.  By separating them from their community and support network we impair their ability to love and be loved.

When I was 13 I made a very bad judgment and physically harmed a classmate I was fighting with.  My ‘punishment’ was court-mandated community service.  I was never once separated from the people who loved me and pushed me to do better.  I volunteered at a shelter and saw the suffering caused by physical violence, which helped me see the consequences of my own actions.  I learned the power of judgment and the strength of love, and I emerged a better person.  Everyone should be given this chance, especially children, but so many aren’t.

Look, I’m not trying to be sentimental here.  Love isn’t all we need.  It doesn’t fix every problem or repair every harm.  But it can give us the strength to navigate a world full of suffering and the courage to shoulder the awesome responsibility of personal judgment.  So, when we’re given the choice – and we are given the choice so much more often than it seems – when we’re given the choice, I try to choose love.

I’ve yet to regret that.