Constitution 3.0 collects the thoughts of several prominent legal analysts and technology experts to muse on the future intersection of law, technology, privacy, and the like. Most of the time they speculate on what the future might and should look like. The authors talk of different things but all agree that we will need creative thinking to solve the coming conflicts over access, security, and privacy. The book deals with big picture questions, but I thought it missed an opportunity to discuss where such issues hit most people most often in real time. The most interesting part of the book for me, then, was one example of just this–the case of Stacey Snyder, who lost her position as a student teacher over what amounted to a particular post she made on MySpace.

The very short summary is

• While student teaching she posted a picture of herself at a party holding an indeterminate beverage in a cup.
• She then posted a caption at the bottom of the page which read “Drunken Pirate.”
• Someone got wind of this picture, which eventually made its way to her supervisors at the school.
• She then lost her teaching position and, as a result of this, failed to graduate with her teaching degree. She sued for wrongful termination.

Snyder argued that she posted the photo on a private page, and the photo showed nothing illegal. She did not share the photo with students. Her perfectly legal private life should not impact her public duties in any way.

As one might imagine, the issue gets more complicated with more facts revealed (case facts, opinion here). The administration would overlook marginally bad judgment in this case for a good teacher. But Snyder received poor evaluations in some crucial areas throughout her student-teaching, such as classroom management, and being “too familiar with students.” She also, despite warnings from her supervisors, made students aware of her MySpace page, and made thinly veiled criticisms of her teaching supervisors on this page. Finally, despite teaching English, she sometimes wrote incomprehensibly even in the most formal of settings, as some examples submitted by the school district indicated.

Snyder lost her case. From the perspective of the school district, the MySpace post was one factor among many in her dismissal from student-teaching. The judges’ opinion focused primarily on certain technical matters of whether or not the court could compel the school district to award Snyder satisfactory ratings in for her certification. The 1st Amendment issues, however, boiled down to whether or not Snyder should be considered a student while student-teaching, or a public employee, i.e., a teacher. Different protections applied depending, and the judge declared that she functioned as a teacher during the time in question.

Certainly the case is not a slam-dunk, and a judge who focused more on the privacy questions, and saw Snyder primarily functioning as a college student in her role, might have ruled in her favor. For me, it’s not the ruling, but the intersection of what is personal and the public, the technically correct and broader perception, that makes this case important. Constitution 3.0 deals with crucial questions of the role of Congress, the courts, genetic engineering, neuropsychology in interesting ways, but the Snyder case brings many of these issues down to a particular point. More focus on particular questions like this would have made the book more relatable. And, while the book ably points out many of the legal problems heading our way as digital technology expands, it fails to try and understand how such technology changes our view of personhood, and thus of the rights the book discusses.

The book basically seeks to figure out how our current technology and culture should interact with our time-honored principals of the person and privacy. I suggest that possibly that these principles will not survive, not for a lack of will or wisdom, but because these principles arose out of a completely different view of the persons relationship to society than what we have currently evolving.

In a famous interview in the late 1960’s, Marshal McLuhan, he of the famed “the medium is the message,” discussed the impact of literacy and how it shaped society. He said,

Before the invention of the phonetic alphabet, man lived in a world where all the senses were balanced, a closed world of tribal depth and resonance, an oral culture structured by a dominant sense of auditory life. [This] contributed to seamless sense of tribal kinship and interdependence . . . there was little individualism or specialization. Oral cultures act and react simultaneously , whereas the capacity to act without reacting is the special capacity of “literate” man.

McLuhan went on to explain the regimentation of the printing press, and the detachment and regimentation required to read the printed word, created most everything we know of regarding the modern state from ca. 1500-1900 A.D.

Every aspect of mechanical culture was shaped by print technology, but the modern age is the age of electric media, which forge environments and cultures antithetical to the mechanical consumer society derived from print. Print tore man out of his traditional cultural matrix while showing him how to pile individual upon individual into a massive agglomeration of national and industrial power.

. . . The electric media are the telegraph, radio, films, telephone, computer and television, all of which have not only extended a single sense of function as the old mechanical media did, i.e., the wheel as an extension of the foot, print as an extension of the eye–but have enhanced and externalized our entire central nervous system, thus transforming all aspects of our psychic existence.

For McLuhan, the transition began with the invention of the telegraph, the first significant electric media.

When asked if he “relate[d] this identity crisis to the current social unrest and violence in the United States?” he responded,

Yes, and [also] to the booming business psychiatrists are doing. All of our alienation and atomization are reflected in the crumbling of such time-honored social values as the right to privacy and the sanctity of the individual. . . . As man is tribally metamorphosed by electric media, we all become Chicken Littles, scurrying around frantically in search of our former identities

I find McLuhan’s analysis intriguing, though I am sure I fully understand it. Perhaps he overstates his case, but I am convinced that new forms of how we get information will dramatically impact how we view the self. As television attained near ubiquity in American homes, something that McLuhan classifies as a type of transformative electric media, I find it no coincidence that we see the simultaneous rise of the idea of “authenticity”–a belief that our true selves cannot lie within existing structures.

I should state from the start that I hate the idea of authenticity. It has created a great deal of bad literature, bad poetry, and it was the Achilles heel of many of the progressive rock groups I grew up liking.* Charles Taylor’s book The Ethics of Authenticity points out a lot of good and bad with “authenticity” as a way of being, Whatever we might think about it, when we combine McLuhan’s insights with Taylor’s, we see a fusion of philosophy and technology stirring up trouble in good and bad ways for modern man, creating a crisis in our legal system and our culture.

We can see this crisis more clearly when we compare today to the past. In ye olden days, ones view of self had many more limitations, but also much more clarity and solidity. The vast majority of people had their religion, geography, social connections, and job more or less handed to them at birth. People had limited power but a much more stable and coherent view of the self. Now, through a combination of religious and technological shifts, we have more power to define ourselves, but that power comes with increased fragility of the nature of the self.

Increased power always comes with increased vulnerability. Nuclear energy could cleanly power whole regions, but if something goes badly wrong, all those regions would cease to exist. If one walks across the country, one could conceivably stumble and skin their knee. If you ran instead of walked, you would travel faster, but you could fall and twist your ankle. If you drive, you’ll get there much faster than running, but if something goes substantially wrong with the car you could face serious injury or death. Flying is even faster than the car, but if something goes mildly wrong, death would be the only possible result. If one goes into space, one screw coming slightly loose might kill everyone.

We now have a great deal of power to define ourselves. All that used to be perfectly settled is up for grabs. But with that power will inevitably bring with it a much more fragile and fluid view of the self.

This bifurcation between a society constructed with the values of the printing press, and a highly interactive technology that unconsciously promotes the values of pre-literate societies, helps us understand some of the bizarre tensions we see in society today. On the one hand, we live very private lives. We do not interact with our neighbors, everyone in the family has their own Netflix profile, and so on. On the other, we share many mundane details and thoughts of our lives with the world regularly. The reason why so many get so focused on views and likes is because, like other oral cultures, we need feedback that pre-literate man received instantaneously. At the same time, we want privacy and the right to make our choices irrespective of the values of others. We want maximum power, and naturally got maximum vulnerability to accompany it.

This tension comes out in different ways in almost all of our discussions about rights.** We still grant significant protection to home surveillance, or at least, to surveillance that reveals details inside the home. But outside the home . . . most everything is now “public.” Stores, train stations, neighborhoods—we can be legally watched anywhere one can put a camera. Part of this comes from the security concerns that come with our increased power. Constitution 3.0 explores the relationship between privacy and security quite well. It fails, however, to consider the other dynamics at play. Our idea of what constitutes a person has changed a great deal since the 1780’s. We demand the power to define ourselves freely, but cannot accept the accompanying vulnerabilities such power entails. We use technologies that at least attempt to connect us in the manner of pre-literate societies. But we want none of the communal responsibilities and accountability that comes with the technology. We live between these two poles, and so our concept of rights will fluctuate a great deal until we commit to one direction or the other.

Dave

*I have enjoyed listening to Dave Weigel’s The Show That Never Ends, a history of the progressive rock scene in the late 60′ and 70’s Weigel writes as a fan, but also as the classically detached journalist, so deadpan critic and fanboy get mixed together. Time and time again, these groups would attain some kind of great success with brilliant, creative instrumentation, then the band would fracture over the various members need to express themselves. The music also quickly got burdened with lyrics that were wispy, meandering, non-sensical, but certainly “authentic.” The book’s title alludes also to the fact that the bands started writing near/actual self-parodying songs with 8 movements that went on interminably. Band members talked about how their music “requires a lot of the audience.” What it required ultimately was extreme amounts of patience as the band essentially used the stage as a therapists couch.

Weigel spends a lot of time on Yes, and with good reason. No band put together sections of instrumental brilliance quite like them. And yet, their songs often veered into what I term “elves dancing in the meadow” motifs–gibberish masquerading as poetry with no anchor to reality. Alas! “Authenticity” occasionally made even great bands like Yes unlistenable. Thankfully, bassist Chris Squire kept them in reality when he could. If one wants to see what happened when some of Yes’ old members get together without the anchoring of Squire, and to a lesser extent drummer Alan White, sample the Anderson, Bruford, Wakeman, Howe album. All I can say is, prepare yourself for a full-on “Elves Prancing in the Meadow” experience.

**For example, on the abortion question. I am pro-life. I have read some people who are also pro-life that did not think Dobbs was reasoned correctly, however much they might have liked the outcome. I have not read the opinion myself and withhold judgment. I have also read some pro-choice advocates who believed Roe was built on a legal fiction, and this I have always thought. Other than that, I have no comment on the particular legal issues at stake.

Regardless of one’s position on abortion, I find it amusing and “appropriate” (in a way) that pro-choice advocates are not comfortable with the issue being decided locally and democratically. I say “appropriate” in the sense that it fits with the pattern described above. The great power pro-choice advocates desire to determine their lives cannot be subject to the whims and fluidity of democracy. It requires stronger stuff–they need a universal law to accompany their universal “right.”

Local cultures and traditions are much more stable, though of course, more limited. New York City will not be turning Red anytime soon. The habits and the traditions there would gladly support abortions for decades to come. The rights pro-choice people desire would be more stable there. But New York is not the whole country. Stretching the “right” to an abortion across everywhere means, however, that if a few justices flip one way or the other, well, that’s that. What the court creates, the court can unmake. “If you live by the sword, you will die by the sword.”