Today’s interview is with tech-savvy lawyer Riana Pfefferkorn. It’s a doozy in terms of length, but Riana has some incredible insights into privacy, social networking, law, and credibility online, so grab a cup of tea, and settle in for great read.
Riana is a 2009 graduate of the University of Washington School of Law. She lives and works in San Juan, Puerto Rico. She has two cats and never enough books. Lawyerly Disclaimer: The views expressed herein are solely her own and in no way reflect the opinions of her employer.
Sarah: The internet evolves so much faster than the law that the law has become virtually irrelevant online. How do we change the process of legislation and litigation so that it can keep up with the internet?
Riana: OK, go ahead and put the hardest question first, why don’tcha. This question assumes that it’s desirable for legislation at the state and national level to keep up with the Internet… I’m very wary of Internet legislation due to enforceability problems and the inherent arrogance of trying to impose local laws on an international system.
Maybe the first thing to recognize is that the Internet is a complex system onto which our traditional legal regimes map imperfectly. We can apply “meatspace” legal schemes pretty easily to some behaviors on the Internet, but the nature of the Internet — the nuts and bolts of how it works, and how the various digital tools and technologies we use work — means other regimes are a bad fit. We can’t take a “one size fits all” approach, so rather than look at it like one monumental entity called THE INTERNET, legislators must take the time to understand the technologies they seek to regulate. This is why I’m glad the current administration has created a CTO position. I would like to see something like that in every state, too, since certain states (*cough* Utah) have a fondness for passing boneheaded laws regarding the Internet.
The Internet (in all its nuances) does move fast. I don’t expect legislators, who have to be jacks-of-all-trades, to anticipate what the next disruptive technology is going to be. We have more than enough laws as it is; existing laws can often cover online behaviors, obviating the need to pass a fancy new law. Legislators need to recognize when there is actually a need for a specific new law, and when they can leave well enough alone. Any time you write a new law, you have the usual problems of what language to use. Narrowly targeting a certain technology in a law means the law can be applied only narrowly. At the same time, using language in a bill that’s too vague or too broad will cover things the legislation wasn’t intended to cover. As I said above, I think if legislators really understand the nuts and bolts of the technologies, they can figure out whether broad or narrow language is called for (after first deciding that there is a need for a new law at all). For example, the federal wire fraud statute was written to cover telephones and TV, but the term “wire” applies just dandy to the Internet. On the other hand, the copyright laws were written for tangible, physical “copies” of books and pictures and so on; MP3s threw a monkey wrench into the situation. So to legislators, I say: first, understand the technology you’re talking about; second, think hard before you decide you need to make another law just for THE INTERNET; third, know your place and don’t get grabby. Exporting your state’s Internet laws to other states gets real awkward real fast, and when it comes to federal law, extraterritoriality is generally a bad idea.
For litigants, “don’t get grabby” is also a good lesson. I place a lot of trust in the judiciary to see how new situations fit within laws written before those situations arose. However, courts must be on the lookout when prosecutors or plaintiffs try to stretch laws to cover conduct that doesn’t fit. Look at the Megan Meier Myspace suicide case: the prosecution got jurisdiction in California, half a continent away from where the events occurred, and they used the Computer Fraud and Abuse Act, which Congress passed in 1984 and meant to cover hacking, to nail the defendant to the wall because they couldn’t actually charge her with murder. The jury went along with the prosecution’s theory, saying that you can be convicted of a federal felony if you don’t follow a website’s Terms of Service! Luckily the judge threw out the verdict and said he would acquit the defendant, Lori Drew, though that’s not final yet. Like I said, I place trust in the judiciary, but for a judge to throw out the decision of a jury is a big deal. So if anything I’d say that litigants need to step off. As said, we have reams and reams of laws in this country; if there’s already a law of general applicability that covers your situation, don’t go misusing some law for your case just because your case involves THE INTERNET.
But your question implicitly referred to the fact that all litigation takes forever and can’t always keep pace with technology. Although it is a threat to my career as a litigator, I hope that alternative dispute resolution looks more favorable to would-be litigants because the Internet is so fast-paced and litigation so glacial. Litigation should be a last resort, not a first resort; working with users, website operators, and ISPs to resolve problems should come first. However, the Internet’s not a polite place. The threat of using such alternative processes rather than litigating is the risk of disgruntled parties doing an end run around due process, like with the abuse of DMCA takedown requests. So we do need safeguards. But the fact that we can’t see each other online doesn’t mean that there isn’t a reasonable human being on the other end of the wire. Just as in “meatspace” legal disputes, freakin’ talk to people before you sue them. Maybe it’ll solve your problem faster than an expensive lawsuit would.
Sarah: How can nonprofits attract young lawyers? The College Cost Reduction Act and the recession seem to be helping, but are there specific perks that appeal to our generation that might encourage people to work for a less money than they would make at a firm?
Riana: First, let’s assume that a) the cost of a law school education is only going to increase and b) our broken health care system isn’t going to get fixed anytime soon. Debt and health care worries, which have a huge impact on American workers as a whole, not just the legal profession, mean that nonprofits aren’t about to be able to compete on salary and health care plans with the Biglaw firms. So there must be other ways to get people to work for less money.
Nonprofits offer way better hours than law firms. That’s the biggest thing. A more laid-back working environment, where you can be yourself and not worry about being bland and well-dressed when you spend most of your time behind your computer, is number two. Offering flex time and telecommuting, so people can arrange their days in the way they personally are most productive; sponsoring volunteer projects, a “green” workplace, and an in-house baseball team; offering child care at work — none of these is alien to law firms. But having your evenings and weekends to yourself, plus being able to actually use your vacation time (and not make it a “working vacation”) — that’s something Biglaw can’t give you. “Our generation” has been denounced for being slackers, unwilling to work hard. We are willing to work hard. We just don’t believe that we need to be slaves to our jobs, or that job performance can be measured by wearing a tie every day and having your ass in the office chair promptly at 9:00.
Also, a nonprofit is inherently about a cause. Working for a nonprofit means you’re working for something you believe in. This is a politically active, engaged generation that bristles at being asked to leave morals behind at the office door. At a law firm, you could end up on case teams representing clients you find morally bankrupt. When I was interviewing with law firms for summer jobs, I definitely took into consideration who their clients were. No, not all nonprofit clients are nice people, even if it’s a good cause you’re fighting for. And yeah, when you work for a cause, not for a paycheck, you’re signing up to get into political infighting, worry about the hit to your organization’s image if you join some wacky organization’s amicus brief, and maybe burn out. A nonprofit has its own problems and politics. Anybody going to work for a nonprofit needs to know that. But I think that there’s a lot to be said for going to sleep every night knowing you’re putting some good in the world through your work, not just helping some company make money. That’s not a value unique to our generation, of course, but let’s try to keep that idea alive while we’re still young.
Last, this is a generation that is ubiquitously connected to people all over the world. A nonprofit can encourage its lawyers and employees to use Twitter, blogging, and other tools to promote the organization – all within the bounds of confidentiality duties, of course! You see lots of companies floundering about what to do with social media — they feel like they should use these tools, but what do they have to say? A nonprofit can muster up attendance at an event, raise money, spread news, ask for help or feedback… the list goes on. We can get the viewpoints of people in other countries, get real-time information, monitor public opinion about the nonprofit’s cause. We already tweet and blog and Facebook our way through our days; a nonprofit can tell us that our social networks are valuable, instead of chastising us for wasting time online that we should be using to bill a client.
Sarah: There seems to be a divide in digital culture between people who believe strongly in a right to anonymous speech and people who think that information is useless unless it comes from a credible (and thus identifiable) source. Can these two viewpoints be reconciled?
Riana: Anonymity is extremely valuable and always has been in the history of speech in America and elsewhere. Likewise pseudonymity, which seems like one way to reconcile these two viewpoints. The Internet has made pseudonyms ubiquitous, and it is possible to build credibility under your pseudonym, for example as a Wikipedia editor or as a book reviewer on Amazon.
This isn’t to say that pseudonyms don’t have their own set of problems. We’ve seen that people can hide behind pseudonyms in ways that range from the fairly innocuous, such as authors’ giving good reviews to their own books on Amazon under assumed names, to the actively harmful, such as Whole Foods’ CEO’s use of “sock puppets” to speak ill of rival chain Wild Oats.
Fortunately, the Internet calls for everyone to participate, rather than merely to read passively. Reputation is what other people say about you, not what you say about yourself. If others can vouch for the information or opinion that you give, that makes your pseudonym-identity more trusted. Yes, you can give your own book a good review on Amazon, then create more sock puppet accounts and give your review the thumbs-up so it looks like lots of users found Joe Reader’s review helpful. But detailed information says more than a thumbs-up. Moreover, any website that makes user-generated content a core competency will invest in ways to reduce and expose sock puppet sneakiness.
Plus, speaking of technology, we have ways of letting other people know that you’re you. We have OpenID for posting to websites. PGP keys for your e-mail. Heck, we have hyperlinking. You want to build credibility? Link to your sources to verify what you’re saying is true. (This gets kind of recursive: you linked to a NYT article; why should I trust the NYT? But let’s not go down that rabbit hole just now.)
Technology isn’t infallible. Your e-mail account could get hacked, whatever. I don’t think that technology, law, or social norms alone can keep speech on the ‘Net free. I think those things have to work together. The courts also act as a safeguard for protecting anonymity online. In fact, today when I was writing this, the D.C. Circuit, which is an influential court despite having jurisdiction over such a small area, handed down a decision containing guidelines for when anonymous online speakers should, or should not, be unmasked: http://arst.ch/6di I think the courts can figure this stuff out (eventually). But as the court opinion notes, standards are all over the place from state to state; in some jurisdictions it’s very easy to unmask your John Doe defendant. That’s why I’m glad we’ve got technologies such as remailers and Tor. If you want to build a reputation online, we’ve got tools for that. But when you want to hide, we’ve got tools for that too. And beyond that, it’s up to everybody as citizens to uphold the tradition of anonymous speech in this country.
Sarah: Does this new generation of law students, who are never offline, communicate differently with each other than previous generations? Is there more collaboration? How has the internet changed the way that students research and process information?
Riana: Sure we communicate differently. We IM each other during class and play Attack! on Facebook against each other. We comment on the lecture we’re sitting in, too. The Socratic method is prevalent in the law school classroom, where you just sit and get lectured at instead of having a discussion where the students are invited to participate. If we can chat with each other online during class, we can comment on the lecture and exchange opinions and ideas even if the professor doesn’t provide time for student commentary.
Is there more collaboration? I don’t know. I’m a loner, Dottie, a rebel — I didn’t do group work much in law school. There has, however, been a lot of interest by librarians and professors in enhancing their pedagogy by using wikis and bulletin boards for class projects. I’ve seen those be very useful. We can use wikis to share research, drafts of papers, links to useful resources, etc. We can use bulletin boards to have more discussions outside class, or to post news stories relevant to what we’re studying at the time. Plus, you don’t have to panic over missing a day of class. Professors podcast their lectures; students e-mail their notes to friends who are out sick or caring for a child. Being online helps us help each other out.
As to research and processing information, I think the Internet is a big time-saver but also dangerous. It used to be that if you wanted to find out if a case you were reading was still valid, you had to pore over other tomes to make sure. Now we have little flags on cases in Westlaw and Lexis/Nexis to alert us if there is authority contrary to the case’s holding, or if the case has been overturned, affirmed, whatever. That is a huge time saver.
On the flip side, we get lazy and use Google or Wikipedia when we should use more trustworthy sources. (Back to the recursive question of why should you trust a particular source. Never mind.) Finding something on Google is faster and easier than fashioning just the right query in Westlaw. Yet we rely pretty heavily on Westlaw and Lexis too: having those resources online, for “free” while we’re students, is addictive. When you’re at a real job, a subscription to those databases costs a lot of money. Every query you run costs money. This is public court opinions and legal statutes we’re talking about – government products that are in the public domain! But the databases add features and searchability and then package up these public documents and charge an arm and a leg to access them.
That’s why I’m glad that services such as Public.Resource.Org, which put cases and laws online for free, are on the rise. I think that every 1L research and writing class should make students as familiar with these free online resources as they are with Westlaw and Lexis. If you go work for a nonprofit that can’t soak up the cost of your poorly-formed Westlaw queries, you need to know about the free alternatives. (And you should also keep in mind those things called books, which are found in places called law libraries.)
Sarah: Our generation is, for the most part, happy with exposing their entire lives online. Is privacy dead? Is there any chance of creating a pro-privacy youth movement?
Riana: I think it’s moribund at least. It is my biggest worry. The Supreme Court and courts of appeals have chiselled away at privacy over the past few decades, and laws passed “for your own good” continue the erosion. But services such as Facebook are the biggest threat to the continued vitality of privacy as a core value in America. The legal keystone for privacy is “reasonable expectation” of privacy. All you have to do, whether as a legislative body, a court, or a popular cultural phenomenon, is quietly move the goalposts so that what once was reasonable is now paranoid and uptight. Facebook has shown us how very easy it is to do that. With people my age and younger exposing everything online, we’re in danger of totally losing the ideas about privacy that our parents took to be the norm.
The obvious way to create a pro-privacy youth movement is to show them that what they say online can hurt them in real life. Hey look, you lost your job because your boss saw the photo of you partying on the day you called in sick. But that takes the insidious viewpoint that privacy is only for those who have something to hide. Privacy lets us grow, think, reflect, retire from the busy world and the eyes of others. It has value beyond keeping embarrassing things secret. I think that getting young people in their teen years, right at the point that they’re doing a lot of growing, thinking, and reflecting, is where we need to focus on building a pro-privacy youth movement. We used to keep diaries under the mattress, not on LiveJournal. We can show young people that privacy gives them a way to be sad, to think about crushes, to hash out beliefs and opinions and change their minds; to talk to other people, hold political views, rent movies. To retire from the world and not worry about what other people, or the government, think about you; and also to interact with the people and things around you in a limited way, out of the spotlight. That it’s not just about having something wrong or bad or ridiculous to hide.
But is there a good chance of doing this? I don’t know. Facebook has a lot more money and resources than EPIC does. I admit I think privacy is going to become ever more of a “has-been” in this century. But hey, I’m a pessimist. And working for privacy means more job security for me. So when you’re looking for people to go talk to middle schoolers, sign me up.
Update: In the Lori Drew case Riana mentioned, the judge did finally overturn the jury verdict and dismiss the case.
______
The purpose of these interviews (in addition to just being fascinating) is to promote my panel proposals at this year’s sxsw. In Generation Y and the Future of Nonprofit Communications, I’ll be talking about how to connect with folks like Riana, who care deeply about their communities, but also have very strong preferences over communication style. In Recruiting and Retaining Generation Y: Cheap But Not Easy , I’ll explain why you need people like Riana on your upper management team in order to keep up with an exponentially accelerating technology market. Please vote for those panels if you feel they would benefit the sxsw community.
Photo credit: Franz Cheng
My friend 
