How will developing technologies affect human values?

Elaine McArdle’s “The New Age of Surveillance” describes how the Internet of Things (IoT) has created a hot legal debate over privacy versus security, highlighting the Berkman Center for Internet & Society’s expert report and superb teamwork on this important issue.

But the silence is deafening with no mention of the human impact to be expected from this “tectonic shift” in technology—when sensors everywhere and data about our every movement/preference/habit (all cloud-connected) mean less face-to-face interaction and much-altered ­cultural norms about human ­inter­­­personal relations. The younger generation’s relaxed assumptions around texting private information (versus how my generation views such texts) is a case in point.

In anticipating how we’ll feel about privacy-vs.-security in this new age, we must begin by anticipating how we’ll feel—about ourselves and those around us. The legal debate is much less meaningful if it ignores the evolving human values being debated. The tectonic shift in technology both drives and is altered by the tectonic shift in our emotions and expectations.

How not to regulate the Internet of Things

I read your article on “The New Age of Surveillance” with great interest. It correctly points out that the rise of the Internet of Things holds the promise of creating significant economic growth, and bringing innovative and very consumer-friendly products to the marketplace. But its potential consequences for privacy and human rights are stark only when the IoT enables devices to exchange personal information.

While this might be the case when done for household appliances as described in your article, the IoT will generate the bulk of its economic benefits in the industrial sector (think locomotives, gas turbines, and aircraft engines), where machines only very rarely process and transfer personal information. For instance, in the power sector, achieving just 1 percent of fuel savings thanks to data analytics would generate a staggering US$300 billion savings by 2030.

So when thinking about how to prevent the IoT from becoming the “Wild West of the Internet,” policymakers should avoid adopting legal instruments that are designed for consumer and personal data protection, and fail to clearly exclude industrial or B2B activity from their scope of application. Doing so would risk hampering the impor­tant economic benefits of the IoT.

This is a risk that is, for instance, created by the recently adopted General Data Protection Regulation of the European Union that imposes “data protection by design and by default” requirements, which mandate how companies should build their products. U.S. legislators should be more careful and judicious, and avoid creating a regulatory regime that would prevent the IoT from delivering on its promises.

Alter corporate law to make financial decision-makers accountable

Professor Scott does all economic policymakers and analysts a major service with his explanation of the difference between connectedness and contagion and the significance of this distinction [Writ Large: Spring 2016]. In particular, by debunking the myth that our Fed erred in its 2008-2009 actions, he makes much less likely having a cyclical problem turn into economic catastrophe. However, it is also useful to address why such analysis is needed.

That is, what created the financial panic of 2008? Putting aside the politically charged dialogue involving alleged depredations of “Wall Street,” it is clear that the ultimate cause was a cascade of bad decisions by both lenders and borrowers, which led to the creation of so much impaired debt and related securities. While no one and no policy can ever prevent all financial ­crises, and as Professor Scott demonstrates, we must have central banks with flexibility and the will to use it to mitigate such situations, it is also helpful to seek to avoid such situations where it is possible to do so.

Congress nominally sought in the Dodd-Frank Act to address such considerations with banker compensation restrictions deemed to be efforts to improve corporate governance, but this author suggests that a full treatment requires addressing our system of corporate law to introduce direct responsibility for the outcome of decisions. Today, the so-called “business judgment rule” largely insulates decision-makers from such responsibility so long as they followed appropriate process.

This author, a longtime corporate practitioner and law teacher, suggests in a 2011 article in the University of California, Davis, Business Law Journal, that it is time to revisit such provision of corporate law and make over our system of corporate governance for systematically important institutions to reduce the incentive for such bad decisions, whether or not they result from the use of “good process.” While Professor Scott makes the essential point as to the need for central bank latitude to deal with financial crises, we are better still if we consider how best to avoid them in the first place.

Abolishing the HLS shield was an empty gesture

If there were an award for the most useless symbolic gesture, Harvard would win it hands down for its recent action abolishing the HLS shield. No living person ever associated that shield with slavery until the school itself set out to make the association. I find it significant that Harvard did not offer to give away the tainted Royall family bequest, which with two hundred years’ worth of interest would be a tidy sum indeed. Feel-good gestures are fine, but keeping the coffers full is apparently more important. If Harvard really wanted to do something for social justice in America, it might consider granting full scholarships or forgiving student loans for all HLS graduates who sign on to a career in public interest, civil rights or poverty law. Then they might not have to go to work for corporate America to pay their student debt. That would be HLS “walking the walk.” Now it’s just “talking the talk”—and rather silly talk at that.

Editor’s Note:

The school’s Low Income Protection Plan offers loan-repayment assistance to HLS J.D.s who take low-income jobs after graduation

Stranger and stranger

This magazine grows stranger and stranger. After the previous issue’s hagiographic review of Chief Justice Roberts’ tenure, with neither a peep nor a whimper about the Roberts Court’s evisceration of stare decisis and “judicial restraint,” now comes the current issue with a full page devoted to the efforts of Geoff Shepard ’69—to exonerate Richard Nixon, 42 years after he resigned in shame and accepted a presidential pardon.

Will next month’s issue feature the efforts of HLS grads to represent The Flat Earth Society, Conspiracy Theorists, or the Area 51 UFO-spotters? To paraphrase the late Joseph Welch (HLS 1917) in his takedown of Sen. Joe McCarthy, At long last, [Harvard Law Bulletin], have you no sense of decency, no sense of shame?

Portrayal of Justice Scalia so false as to be comical

I was fortunate enough to take several courses from Archibald Cox when he had just returned to Harvard from a stint as solicitor general. He spoke on a number of occasions, not about the results in groundbreaking cases he had won but about a philosophy of the law, of how a court should break new ground or overrule precedent in a way that preserved respect for the law and the courts. An overruling decision, he said, should not simply say, I have five votes, get over it. Prior precedent may have been shown wrong by the passage of time or slowly evolving recognition of basic rights; it was not something to be ridiculed. If you ridicule the prior authority, how can your decision, or any other decision of a court, ask for respect from someone who disagrees with it?

The late Justice Scalia’s opinions stood for everything Professor Cox said was wrong. Mr. Justice Scalia departed from standards of civility among lawyers and judges and embraced name-calling to a degree hardly to be imagined before his time. One is tempted to say he was the Donald Trump of the judiciary, but that would be wrong. Rather, Trump is the Antonin Scalia of politicians.

In the spirit of Professor Cox, I would say I was saddened to see the back page of the Spring 2016 Bulletin devoted to Justice Scalia. But, given your admiration for his approach, I fear that to make myself clear I must put it this way: Your portrayal of Scalia’s work and worth is so false as to be comical and cannot be taken seriously. Indeed, it vandalizes the tradition of our law school and of Professor Cox. If I had joined in your editorial judgment, I would hide my head in a bag.

Portrayal of Justice Scalia damned with faint praise

I read your “tribute” to Justice Scalia. It evoked the phrase “damning with faint praise.” A few of the individual statements were downright condescending. Shame on you.

I offer for your consideration my attempt at a tribute to Nino at www.ireallymissreagan.com, see issue 1 and issue 2.

I authorize you to publish either issue 1 or issue 2 or both in full. You are not authorized to edit them.

I hope you will do so. My belief is that you will not.