Join a discussion about the new book Feminist Cyberlaw co-edited by former Engelberg Center Fellow Amanda Levendowski ‘14. Levendowski moderates a discussion with contributors Esha Bhandari, Cynthia H. Conti-Cook, Gabrielle Rejouis, Nina Srejovic, and Anjali Vats.
Feminist Cyberlaw reimagines the field of cyberlaw through a feminist lens, bringing together emerging and established scholars and practitioners to explore how gender, race, sexuality, disability, class, and the intersections of these identities affect cyberspace and the laws that govern it. It is available as a free, open-access volume.
Announcer 0:01
Welcome to engelberg center live a collection of audio from events held by the engelberg center on innovation Law and Policy at NYU Law. This episode is audio of the funtime book party for the book feminist cyber law. It was recorded on September 24 2024 you
Jeanne Fromer 0:23
Jeannie, Hi everyone. I'm Jeannie Fromer. I am a professor here at the law school. I am Vice Dean of intellectual life, and more importantly, for today, I'm one of the faculty co directors of the engelberg center. So thank you for coming to this amazing event. I am more personally excited about this, and I'm already personally excited about all the events we have, but there's nothing better than seeing your former students living their best lives and really doing amazing things. And so I wanted to kick this off by just saying a little bit about Amanda Lewandowski, who has edited the book and will be moderating the fantastic panel. What's the opposite of a mammal? I don't know. There needs to be. There needs to be a catchy phrase for this, this amazing memo, whatever.
Unknown Speaker 1:26
Yeah, okay, that we're going
Jeanne Fromer 1:28
to be experiencing in a moment. But Amanda was one of my first students at NYU, along with some others here in this room today. And Amanda, she appeared in my copyright law class. And you know, I expected like and I'm excited to have engagement with my students, but little did I know that I was having the most sophisticated law student I would ever get coming to law school, because Amanda had already been studying copyright issues and other related issues. So essentially, was an undergrad focused on it in her studies at NYU. And so here I am, you know, asking questions, and Amanda's asking questions right back, hard questions. She's has well thought out paragraphs of thought on everything. So she's, you know, she's, you knew she was going places, and we didn't let her go so easily, so we award her, and I feel very proud of this, too, the Walter J derrenberg prize in intellectual property. So I feel very connected to that, because I'm The Walter J derenberg Professor, and she came back after she went in practice for a while, and came back as a fellow at NYU Law School, and now has really launched a tremendous career at Georgetown. I think some of the fruits of that you're going to hear about today, but is doing both unique and important work that I feel started when you were here, from the work you did on thinking about revenge porn and right of publicity. So total feminist cyber law issues, essay. But I wanted to, for those of you who are students here, live up to Amanda's standard, no pressure, because, you know, you can do it too. That's what I mean, is, you know, Amanda's amazing, but you're all amazing too. And I look forward to hosting these events for you when you get to come back here. But seriously, I am, you know, just really excited that Amanda is. We're celebrating Amanda's co edited book on feminist cyber law with these fantastic people that will get introduced shortly. And thank you so much for joining us.
Amanda Levendowski 3:48
Thanks, Jeannie, that was so beautiful. One thing that she didn't she mentioned many nice things, but one thing that was really formative for me is I never had any intention of going into academia, but Jeannie approached me and was like, Would you like to be my research assistant? And I was like, in my mind, I was like, only academics do that, so no, but she was so great that I was like, I simply must. Because if she's asking me, there must be a reason. And I learned so much from doing that research for you that made me realize that maybe I could do that for myself, which I did the following year in Chris brigman's class. But now I get to talk about some other brilliant people who are not affiliated with NYU Law. And if you've seen the cover of the book, there's like a glowing red orb on the front. It's giving crystal ball. Am I right? So we're going to talk about the past, present and future of feminist cyber law that centers why our wonderful panelists came to the project, something about their specific project that I'm going to introduce as a way of introducing all of you throughout the conversation. And then we're going to end with where is this going. And my hope is that by ending with where this is. Going, it will remind all of you, whether you're a scholar or a student who may also be an aspiring scholar, that you are the future of feminist cyber law. And I hope that you can see yourself reflected in the people in front of you. But I really hope that by the end of the conversation, you see yourself reflected in this movement big goals, is what I'm saying. So what I want to do to get started is I could introduce all of you with superfluousness, and I would, but I actually think that you're the best authorities on your own experience, and I want you to just briefly introduce yourself by saying why you wanted to contribute to feminist cyber law. What drew you to this project from your work or your lived experiences that made you respond to my incredibly earnest, exclamation point laden email celebrating your brilliance and begging you to be a part of what we were building. Ash, I'm going to start with
Esha Bhandari 5:55
you. Thank you. Thank you so much, Amanda. I was very excited to respond to Amanda's inquiry. I'm Asha Bhandari. I am a lawyer at the ACLU. I'm the Deputy Project Director of the speech, Privacy and Technology Project. I'm not an academic. I litigate for a living, and that's what I've been doing my whole career. So this was actually an opportunity to reflect a little bit on some of the passions that have been animating my litigation work and put it down on paper and try to find a unifying theme my work that is the focus of the chapter in the feminist cyber law is about holding powerful actors and platforms on the internet to account, and in particular, how do we adapt the law to allow for the kinds of maybe, I'll say, muckracking journalism of the days of old that we have come to expect, hard hitting investigative journalism that is adversarial to its targets, that's not simply done in cooperation or collaboration with the people it's investigating or the entities, and largely corporations and also government entities that it's investigating. How do we make sure that that type of journalism and research doesn't die out in the internet age, where everything is boxed off in conceptions of, quote, private space or space that is controlled by the actors that you know run the platforms? I think, you know, I've brought cases that have defended the rights of independent researchers and journalists to do that kind of adversarial work online in the face of computer crimes laws and contract law interpretations that are really hindering that and so the opportunity to contribute to feminist cyber law was great, because I, you know, even though I'd been doing this litigation work over the years, I hadn't really pulled it together piecemeal, and This allowed me to think of some unifying themes which I've mentioned, you know, the corporatization, or the attempt to privatize digital spaces, and therefore to box out any discussion of or investigation of them that is not welcome to the targets. And also just 21st century journalism. And what does 21st century Accountability Project look like, and how can the laws adapt for it? So that's the focus of my chapter. I'm sure I'll talk more about it, but it was really wonderful to be able to contribute to the treatise in this way. Amazing.
Unknown Speaker 8:14
Cynthia, over to you.
Cynthia H. Conti-Cook 8:15
Thank you. We going on. You can hear me. My name is Cynthia Conti cook. I can't tell if my microphone is working, so you tell me we're good. Okay, thank you. I am currently the Director of Research and Policy at the surveillance resistance lab, and I've been there for about a year when I received Amanda's inquiry. I think I was a technology Fellow at the Ford Foundation at the time. But prior to that, I had been a special litigation unit attorney at the Legal Aid Society, which does criminal defense, but also civil rights for New Yorkers in all five boroughs, and one of the largest public defenders in the country. What I believe the reason that I was asked to write about the topic of trade secrets, which, if you can tell from my bio, is not my area of expertise, and I was not an academic, either
Amanda Levendowski 9:15
we love people who aren't academics.
Speaker 1 9:18
The way that trade secrets came into my life was that as a resource attorney, as an attorney who does extra layers of research for very busy trial attorneys, I had increasingly been getting inquiries from our attorneys about intellectual property arguments and our attorneys sort of requests for help usually sounded like capital letters and expletives. I didn't study intellectual property. Why is this coming up in my cases, this has never come up before. And this was around 2016 2017 2018 and where we were seeing that Kathy most often was I called Kathy for a lot of help. I. Those years too, we were seeing these fancy, white shoe law firms come into like our, you know, criminal courtrooms all over the city. If you've ever been into them, they're very different vibes than the Ford federal courtrooms that intellectual property lawyers are usually in. And our attorneys were just like, I don't know what a trade secret is. They're coming in. They're saying it's a trade secret. The judge is nodding. I'm out of control of this argument. Help me. And so we started to, reluctantly research intellectual property and how it should apply in our criminal cases and and you have to understand that for cases that are going to trial, especially the way that defense attorneys feel about their entitlement to as much information as they can argue for is it's very aggressive. You are about to take away someone's life. You're about to take away someone's liberty, often for a very extended period of time, and for us to be confronted with a company's lawyers who are arguing that their several years of R and D is worth more than your clients however many years of life, it was a very jarring sort of very different kind of adversarial experience, even than what we're used to with prosecutors in place. And trust me, we're used to it. There was a different texture, though, to the arguments that were being made by these law firms, and there was a different type of deference that the judges were having towards the process, towards these companies and even towards prosecutors. And so the solution space, you know that these corporate lawyers were really allowing for was NDAs attorneys, eyes only agreements and other kinds of compromises that really just, you know, didn't address the issue that didn't address the ability of us as the public who are being subjected to police and prosecutors uses of technologies that the public hasn't vetted. And so that really is how the issue of trade secrets came into my practice, and at the time when I wrote about it, I must say that I was not only not a litigator at the time, but I was and not an academic at the time, but I was also in this place where I was really feeling the limitations of law in general. It was post George Floyd, it was post, you know, many, many years of litigating for civil rights and seeing just the limits of what we can really get in the courtroom. And so I really wrote it from a place of critiquing, not just the law, but critiquing law is the only vehicle for how we change, which is why it started with like a strange in the context of like a law review article, a strange, different kind of sort of value table setting. But I look forward to talking to it more. Yes,
Amanda Levendowski 13:11
if you haven't read the piece by Cynthia, she uses the metaphor of a bouquet and connects it to all the meanings of flowers and the things that you need in your portfolio. As a trade secrets lawyer, and I remember being struck by both not expecting to see that kind of just like hyper feminist messaging in the piece. Right Thinking about flowers and meaning is just so typically feminist and typically feminine. But I also really appreciated in both of your pieces that it's so grounded in the practicalities of lived experience. As lawyers who do this work, no shade to the academics, although some of you are academics who also practice, and we'll get there in a minute. But I also hope this is a message that like when you're thinking about a movement, it's not just the scholars who are writing law review articles that are read by dozens of people, although sometimes those dozens of people are supreme court justices. So it does matter a lot. It's the right dozens that really matter. But one of the things we were thinking about and putting together this volume, maglita Jones and I were one people who were socio technically savvy, who in their jobs had to understand the social and technical parts of what they were writing about from an IP or criminal law or whatever perspective. But we also really wanted people who had done the work in the field in conversation with scholars, because we thought that was a more robust way to complement both disciplines, because I think scholars have a lot to learn from practitioners. And although it's less popular say, I think practitioners have a lot to learn from scholars. Which brings us over to somebody else who's new to the scholarship game, but also very seasoned in the practical game. So over to you, Gabrielle.
Gabrielle Rejouis 14:54
Thank you so much for the invitation. My name is Gabrielle re I use sheher pronouns. I. A senior fellow at the workers' rights Institute at Georgetown Law. And my piece was a really interesting way for me to bridge the gap, as Amanda alluded to, between scholarship and activism. And so when Amanda invited me to write and to contribute to the volume, I was a lobbyist for Color of Change, which is the nation's largest online racial justice organization. It is a tagline that I know better than any other organization that I've worked for, because I was introducing myself to a lot of different offices on the hill and seeing that if you had an idea and you're bringing it forward and saying, Hey, we need a law or we need a policy change. A lot of times they were asking for scholarship. And so even if we were talking about our members, we were bringing forward news articles, they still wanted sort of that, like the veneer and the shine of this is an academic who wrote this thing saying that x is needed. And so we, I still use the we so Color of Change. I was hired right after they had launched the largest like ad boycott at Facebook, the stop hate. Stop hate for profit campaign really trying to put pressure on Facebook to enforce its content moderation policies. And even though there were billions of dollars that were withheld from Facebook over a month period in time, Facebook said that they knew that folks were going to come back to advertise on Facebook because there is an ad duopoly, and so if you want to advertise online, your best choices are Facebook or Google. And if you are a small business, if you're a large business, you're going to go back to Facebook at some point, even if you don't agree with their policies or how they're enforcing or refusing to enforce content moderation. And so that led a lot of leadership at Color of Change to consider what are other avenues to push for content moderation, especially as we're seeing harmful mis and disinformation disproportionately impact black communities. And so we did a lot of creative thinking and sort of trying to figure out how to use antitrust to address this larger issue of online platform power. And so that Amanda, as I talked to her about this, about these policies and sort of this theory that we're putting forward, she said, like that sounds like a great essay to include in the volume. And so something that brought me to writing this also is to think about, not only how to use antitrust to address content moderation as a whole, but in particular, to think about the ways that certain portions of the population are disproportionately impacted by online speech. And so the essay focuses on what I call online violence. And so this is harassment. This is threats, both real and sort of like hypothetical. And the ways that that is a very like false distinction to make, because, as we saw with Gamergate, as we saw with the year, slip, is showing hashtag, and as we see, like continuing today, right, like a tweet, a trending hashtag can really lead to immediate harm, that if we're waiting for the 911, call, it's a little bit too late. And so again, super excited. And also, just to name that like it's really interesting, the story that your mentor talked about you Amanda, because that was very much the way that Amanda talked to me in terms of, in encouraging me to submit a volume or essay, excuse me to the volume. And sort of like, why don't you just try it and see? And so I'm dipping a toe in and out of academia. But again, like, very excited to be part of this
Amanda Levendowski 18:35
panel. We love you as a lifeguard, but we also love you if you love to come swimming. Angela, over to you.
Anjali Vats 18:43
Thank you. Hi, I am holding down Ford academia over here. I'm Anjali Vats. I'm an associate professor at the University of Pittsburgh in the School of Law. I also have a secondary appointment in communication. And I mention that because I think it really informs the work that I do. So my work is in race and intellectual property. Amanda reached out to me to ask me to talk a little bit about the critical race intellectual property work that I do. This is obviously a great place to talk about race and intellectual property for all sorts of reasons. The other thing that I do is I run the race and intellectual property Conference, which is now in its fifth iteration, and the theme in April is abolitionist futures. So I think a lot about intellectual property, what it means to have abolitionist perspectives on intellectual property, and for this project, how that intersects with gender, which is an exciting part of my work that I think is now developing. I just finished a piece on Taylor Swift and master records that deals with race and gender lines. The piece for this collection now looks at the China initiative. The DOJ is China initiative as a way of i. Yeah, essentially looking into researchers, in particular, university researchers who in so there's sort of the theory of the China initiative, which is that it's intended to identify spaces of espionage and potential espionage coming out of China. And this relates to the trade secrets topic that has been flagged already, but in reality, it really targeted a lot of Chinese researchers, and it called back to some of the earlier work that I had done on Wen Ho Lee, who was falsely accused of stealing national secrets many years ago. So particularly in light of covid in light of the congressional hearings on Tiktok there, I think we're in a moment of yellow peril rhetorics and a moment of sinophobia as it relates to some of these technology and intellectual property conversations. So my piece really looks at that and thinks about, well, what, how do we address these sort of discursive and also bias issues in the context of trade secrets and intellectual property? And what does it look like to think about race in a critical but also practical way? The DOJ has said that they are ending the China initiative. This had just happened, I think, when I started the piece. But of course, that doesn't mean that they're not still investigating cases. It doesn't mean there isn't fallout for the researchers that were targeted. So these are some of the questions I think, that are ongoing as we talk about issues around trade secrets, as we think about technologies like Tiktok, and we think about what it means to do intellectual property work in this day and age.
Amanda Levendowski 21:45
Amazing. Last but not least, Nina over to you. Thanks. Hi.
Nina Srejovic 21:50
I'm Nina Srejovic, and I think I am one of the practicing attorneys in academics like Amanda, that Amanda was referring to, I teach at Stanford, at law school, at the juuls guard intellectual property and Information Policy clinic.
Amanda Levendowski 22:07
It's so intense to hear you say that you don't work for the ipib Clinic. I think it's the first time I've ever heard you introduce yourself that way, and I am going to cry. I'm so proud of you. So
Nina Srejovic 22:17
what Amanda's talking about is when she asked me to contribute to this volume. I was working in the man's clinic, and Amanda had given me such great opportunities at the clinic that I just looked at this as another great opportunity. So of course, I said yes. She asked if I would write on patents and feminist cyber law I'd been following the past several years. Five years or so, the patent office has really been focusing on the disparities, in particular gender disparities in innovation and patenting. One of the reasons they pick gender is because they do these studies by guessing the gender of inventors, because there's no reporting when you file patent application. They don't require you to put your gender or your race or anything like that, so they just guess by name, but they say they're doing a good job. So I just have to trust them. But so I've been following the data that they've been collecting, and the most recent study showed that. I'm going to throw out some numbers, even though that's not the focus of my piece, but the most recent study said that of the the percentage of patents granted in 2019 78% of them were by all male teams of the inventors listed on there. So if you think about that, it's if you're going to measure innovation, if you're going to measure inventions by patenting. We're saying that you know, of all the innovation in this country, only you know, 22% of them, only 22% of the head of women contributing to it. Another statistic they've come up with is that of all the inventors listed on all the patents granted in 2019 only 12.8% of them were women. And I looked at these numbers, and I just thought, there has to be something else going on. And so I decided to write what I think is a story that can that add some nuance to these numbers that we're hearing the numbers are important. They're important to get out there. But I think that sometimes the stories behind the numbers can give you some information that the numbers don't give. And because this is a volume on cyber law, I decided to focus on the history of computer programming, which some of you may know was initially done almost exclusively by women, and then changed gender and the history of patenting, and there's an interesting confluence going on there.
Amanda Levendowski 24:50
I'm trying not to cry, you guys. I'm really in my feelings. This is so fun and so exciting. So this is kind of the past, right? We're reflecting on why you came to this. Project and what brought you into the feminist cyber law movement. But something very present also happened, which is the book came out in June. This is the part where you clap. Book came out in June, yeah. And that created, like a moment in time, right? A lot of us have had changes in policies, as Anjali mentioned, you know, the the initiative has been sunset for now, but we don't know when that could come back. I wrote a piece about control, digital lending, something that we've been doing in my clinic for a really long time. Indeed, we just got a grant to hire an amazing person, Becky Chambers, to come back as a from a student to work in the clinic on these issues. And unfortunately, uh, control to the lending, which we have loved so much, was just recently ruled illegal by the Second Circuit in the hash versus Internet Archive case, um, the piece is still relevant. Read it, um, but things have changed. So we've crystallized ourselves in these moments. And so I want to go back to what we crystallized ourselves in very briefly. You I gave you first pass. You got to explain what your chapter is about to this wonderful audience in your own words. But now I'm going to do my best shot at summarizing what I think your chapter is about and why I asked you to write it. I think they align pretty closely, but we're going to find out, mash. I'm going to start with you again, because your chapter examines you alluded to criminal hacking laws, but the law we're talking about is the Computer Fraud and Abuse Act, which was enacted to criminalize hacking, but for a very long time, created uncertainty for a lot of good actors around what they could and could not do on the internet. And in particular, your research focused on how the CFAA can interfere with things like speech research and more recently, data journalism, but the scraping of websites or the creation of fake profiles can also create privacy concerns, and I'm curious how you think those concerns could be addressed presently.
Esha Bhandari 26:59
Thanks, yes. So my my chapter was about, as I mentioned, protecting the legal rights of researchers. And just to give a concrete example of what I'm talking about, you know, there's a host of data journalists and academic researchers who do things like, you know, categorize misinformation or disinformation on platforms like x or Facebook, there are researchers who test platforms for discrimination. So for example, they'll see whether a job site or a housing site shows opportunities differently to users based on perceived gender, race, age and so forth. And spoiler alert, it's turned out a lot of these platforms do, in fact, discriminate, and this independent data journalism and research has been critical to uncovering it. Now, one of the issues you know, the data journalists and the researchers, when they're faced with legal process or lawsuits, will often raise a First Amendment Defense to techniques like scraping data on the internet, creating research profiles that allow them to go onto a platform and sort of simulate a researcher who may be a woman, simulate a researcher who a user who may be a man, see how they're treated, what opportunities they're given differently, which requires them to create fake accounts and access information on these platforms. And so user privacy comes comes up a lot, particularly in the wake of things like Cambridge Analytica. And how do we distinguish the work of a Cambridge Analytica from a researcher who's trying to catalog social media content for the purposes of identifying hate speech or misinformation or whatever they're trying to categorize? I think that this problem is not one that's going to be solved with the application of criminal laws like computer hacking laws or even enforcement of Terms of Service against this kind of research, which are done selectively by the platforms being researched, because they're always going to have an interest to enforce when something's going to embarrass them or look bad. I think we have models from other contexts to look to. So for example, when it comes to medical data and medical privacy, the HIPAA law, federal law, HIPAA, which most people are likely familiar with, has provisions in it in the midst of its privacy, protective data, protective provisions that allows for research that is either done with the consent of people whose data is involved or in limited circumstances even without consent. You know, there's not going to be the possibility of consent in every single circumstance depending on a research design, but there are ethical and other ways for that research to be done. There are also techniques that can be used to preserve user privacy. A lot of researchers will, in fact, recruit individual users of a platform to participate, and then the data that they collect and share from a platform may, you know, remain resident on their devices, and only relevant information is shared with researchers. So So you know, there's a there's a host of ways to go about this. Privacy is a concern, not only online, but also. Offline. And I think that we would, we would do well to explore these issues without using the blunt instrument of laws that really only serve the interests of the entities that don't want any research to happen at all and may cynically invoke privacy. And I don't want this to sound like I don't care about privacy, because that's a serious concern of feminist cyber law. And it, you know, it's full, you know, the treatise is full of discussions about this, but I think that, in fact, sometimes our interests and privacy, you know, require the kind of independent research that we're talking about to even establish right. A lot of the research that that has been adversarial to platforms has, in fact, demonstrated that these platforms are sharing information or using information in ways that they never revealed to their users, and that's led to policy changes and regulatory pushes. So I think it's a nuanced discussion we need to have, and unfortunately, so often the law is just a blunt instrument that can't engage with that nuance.
Amanda Levendowski 30:56
Speaking of lack of nuance, I think that's a great segue into talking about what we are currently seeing with with trade secrecy. Cynthia, your chapter exposes how trade secrets interfere with with both technology accountability and transparency, but at the same time, your piece equips advocates with a practical toolkit for countering harmful implication of trade secrets. And now you're working at an organization doing that exact kind of work, and so I have to ask, Are you taking your own advice? I didn't take the microphone from her. That was that was an
Speaker 1 31:35
accident. Easier said than done. Is definitely sort of the main takeaway. I did gather a lot of resources that, like I said in the essay, usually don't get to cross pollinate. So I really tried to bring legal precedent into conversation with the way that activists were targeting the ends of the end of contracts, I tried to bring principles about the public's right to know and how, once upon a time, law was actually oriented around that principle, before it became so entirely captured by corporate dominated values inside of the public sector, even and so by trying to stitch together conversations. Because I was just very luckily positioned, I think, in in our small group of practitioners that were learning from Kathy how to understand intellectual property law, you know, we had
Amanda Levendowski 32:43
when we whispered, and just whispered, looking down that she was doing most of the learning.
Speaker 1 32:49
I mean, we had brought together for several years when I was slightly delayed, this group of technologists, a group of defense lawyers, Policy Advocates from including from ACLU, and we had just started to, like, teach each other, like, this is what it looks like when we get a subpoena. This is what we can do with this. This is how far we can go to protect the type of the quality of the access that our experts can get. And those issues were really important to these kinds of arguments. But it really took, I think, a year of us just teaching each other what we do like on a daily basis before we were able to, even then start thinking together. But it took a long practice of listening and learning together. But, but through that process, and then through, you know, the good fortune of being able to just meet the incredible network of Movement advocates and activists and nonprofits out there at the Ford Foundation, I was able to sort of stitch together a lot of the conversations we were having in the context of what do we do in a courtroom, together with conversations with advocates about what do we do in this movement, and how do we fight against really problematic policing technology, for example, ShotSpotter and so one thing that we've realized is that in actually trying to target procurement as a place to make space for more democracy that there are so many different types of procurement, there's so many different methods, there's so many different sizes of how it happens that, for example, targeting how ShotSpotter came to New York City itself is one type of Demonstration Project, type of procurement that, in and of itself, takes a whole lot of studying to even understand how it's supposed to operate, and because it's done in so much opacity, it's very hard to get answers to a lot of questions. And so we've realized that we've had to sort of just take one type. Of procurement process at a time or one type of technology, and really understand how it has been procured across different jurisdictions, in order to start to understand how we can use that space, because also like procurement as a thing looks very differently in every jurisdiction, so it's not a tight package that you can sort of be like, this is a procurement movement, and here we can export it and scale it and do all the things that you know are so often done to a type of strategy like it's just it doesn't fit that well. And so if you're looking at a school district, they're going to procure ed tech very differently than how a police department's going to procure ShotSpotter, which is going to be very different than how New York City, for example, procures Microsoft technology for the entirety of every computer in New York City. So we've realized that demonstration projects are one type of procurement that we're focused on, and we're focused also on master service agreements, like the one that several very large tech companies have with cities like New York City, where it's it's not a contract that goes through a typical procurement process with a request for proposal and competitive bidding, but It's a giant contract that just gets endlessly modified.
Amanda Levendowski 36:25
That was great. I'm gonna try to this is not the most elegant, but speaking of modifying our system to better serve the people, I think we're gonna go over to Gabrielle, and I think in our early conversations, which we talked a lot about this piece, because you were really thinking hard about, like, whether scholarship was something that you wanted to spend your like, one wild and precious life doing, which is a great question when I asked myself on the reg, but you came to the conclusion that the answer was yes, but only if you could do it through a specific lens. And you chose to talk about antitrust with a black feminist lens to address the problem of content moderation, which disproportionately harms black and brown women in particular, both through those through suppressing their voices, but also through threatening them and intimidating them and also spreading misinformation through their communities. And one of the things that you know we've talked about as well is that the Biden Harris administration is doing a lot with antitrust, through DOJ, through FTC, and I wanted you to reflect on whether these efforts are enough, or whether they really would benefit from that black feminist lens to bring these enforcement efforts into better alignment with what the public needs.
Gabrielle Rejouis 37:35
Yeah, and so it's like, really exciting to like antitrust scholars had such a treat this admit, with this administration, I think the cherry on top would have been new legislation, but that's a story for another day. And so I think, like, the answer is yes, and right, like, it's great that we have a non compete rule that, unfortunately, now is going through the court system, putting a pin in that. It's great that there is, like, excitement and discussion of how corporate concentration is harming people. My favorite example is that the FTC pushed through a right to repair law, and so there was a pop ed video going around talking about how that is going to ensure that people have access to ice cream at McDonald's because the ice cream machines were being restricted, and who could repair them? And because of issues, you know, with just the complexities of running a fast food chain, right? Like local McDonald's were not repairing their ice cream machines, and therefore, when you go to McDonald's, you couldn't get ice cream, right? There was that very important note of, this is something that the government is doing, and this is impacting an everyday issue in Americans lives. And so, like, that's super exciting. Like, again, the non compete rule is amazing, but there are some places where there's more that can be done and should be done. I think, in particular, the fact that the non compete rule didn't discuss the fact that non competes are, like, disproportionately leveraged in like, retail and in food service jobs. So it's not the person who the argument often is made. You're a high ranking official. You're dealing with very sensitive information. We don't want you going to our competitor instead, you are a manager at a McDonald's who is hearing that you could get $2 more an hour working at a McDonald's up the road, but your non compete clause is being invoked to prevent you from being able to move locations, but neither
Amanda Levendowski 39:25
McDonald's would have an ice cream machine. Excuse me, I said, but neither, neither McDonald's would have an ice cream machine. Yeah.
Gabrielle Rejouis 39:31
And so this is something that would have been really important to get individuals invested in whether or not this non compete rule survives. I think, also just noting the fact that the courts have been very they have not been favorable to the very creative and aggressive cases that the FTC has been bringing forward. And that's both an example of, sort of like the limitation. It's an example of the limitations of the laws we have on the books right now. Now, and it's very important that we are trying to test and see how far these laws can go while we're waiting for Congress to pass reform. But also it reflects the fact that, like the courts are going to continue in with an asterisk right, they're going to continue in the direction that they are already going in. And if the direction right now is to sort of be very hands off with antitrust enforcement, then it's going to be very difficult for an aggressive pro antitrust administration to get anything moving to change how corporate concentration is impacting our everyday lives. That being said. In addition, when we do get this new legislation, I would want it to empower the enforcers to think in more creative ways, and not only think about consumer welfare in the context of price, consumer price, but thinking about like, what are the impacts on workers? What are the impacts on communities, right? If there's corporate concentration, and that means that there's no competition on the policies for like waste disposal, and so you're going to have pollutants coming into certain neighborhoods. If there's more competition, then you might have another firm for waste disposal that's trying to think about more environmentally friendly policies. And so these are like antitrust actually impacts everything, because we live in an increasingly corporate, corporate, concentrated corporate landscape. And so this is just like one example in one space where we're thinking about it in the context of content moderation, but also thinking about about a black feminist lens, because of the ways that there's this intersection, intersection between racism and sexism. And so if we're only thinking about economic harm, then we may not be thinking about the very particular ways that racism or sexism is being invoked. And so again, going back to the non compete rule, if we're not talking about the ways that some of these industries that disproportionately are employing these non compete rules, and thinking about the ways that if you are a black woman who may not have the capacity, because you're working this particular job, to even challenge a ridiculous non compete rule, even if it may not be enforced in law, in excuse me, when you go to court right, you're still gonna be bound by these policies and be restricted. And so it's important to think about where are the places that need the most immediate attention, and also empowering the agencies that are enforcing these laws to not have to worry about bringing when they bring this unique and like new legal theory, they don't have to worry about convincing a judge who's trying to stick to the status quo. And so I could talk about this forever, so I'll stop there. You
Amanda Levendowski 42:30
actually set me up beautifully to transition to talking to Anjali, which is talking about the status quo. And so much of your chapter expands on your work pioneering the field of critical race IP by examining the biased language we use to discuss cyber crimes like trade secrecy, theft, but also piracy in the copyright context, and you specifically focus on Chinese and Russian actors. How does your approach sort of raise awareness about race and IP generally, and what did you think about when you were selecting those two identities to focus on, and what kind of inspired you to bring that into the fold.
Anjali Vats 43:07
Thank you for that. I have to sort of disconnect from the ice cream conversation, because I'm like ice cream is probably gender too, because who takes the people the kids to get ice cream at McDonald's? But thank you for that question about about China and Russia and this cyber espionage question. So one of the things that I do in the piece is I think about what the respective, the sort of contrasting gender conversations are around Russia and China, and both of those are countries that have been in the news for various reasons. Both of them are heavily implicated in espionage. And this was when I was writing my book, The my my first book looks at
Amanda Levendowski 43:53
by that book too. The title for the people is
Anjali Vats 43:57
the color of creatorship, race, intellectual property in the making of Americans. So that book's book really was a way for me to situate my own understanding of how race operates in intellectual property. And what I did was I looked at landmark cases across copyrights, patents and trademarks to try to understand well, are there in the way that Ian Haney Lopez looks at what he calls the prerequisite cases, any sorts of language, racial scripts, to use Natalia Molina's term, that keep arising over this 200 year history. And I found that there were some pretty consistent tropes that were used I wanted, I mean, there was a lot that didn't make it into that book. And one of the things that didn't make it into the book was what I had to say about China and Russia. And I think the gender part of that was uniquely suited to this project. Asians, I think, get feminized in all sorts of ways. Asian men get emasculated, represented in emasculated ways. This is something that's been going on since the 1920s we can trace it through the VCR wars. We can trace it through conversations about techno Orientalism. But there's this long trope of yellow perils in the United States that's accompanied by this sort of gendered element, and it emerged as I was as I was writing about piracy, in contrast with the way that Russia sort of gets talked about in the context of espionage. So there's a whole different set of rhetorical strategies that get used to talk about Asians that are involved in espionage or piracy, right? These are also bipartisan tropes. So Joe Biden will talk about China and Chinese piracy. So will Barack Obama. And that is something that started in the 20s and is ongoing. I think there's a huge contrast there between the way we talk about Chinese espionage and the way we talk about Russian espionage, and there's a mirroring here of the strongman language that Ruth Benji gout writes about with respect to Putin that gets transported into these cyber espionage conversations. So there's a there's a whole different contrasting white masculinity, or white contingently white masculinity that gets projected onto Russians as hackers and Eastern Europeans as hackers. So what the chapter does, it sort of contrasts these conversations and uses some of the interdisciplinary approaches that I was trying to develop when writing the book, and uses them to think about some of these, these technology questions that I think are very much alive today.
Amanda Levendowski 46:50
Amazing. Nina. Last but not least. I know I already said that, but I'm we're coming back around. And then I have a final question for you that we're going to go so fast so everyone can have cheese and if you choose drink some free wine.
Nina Srejovic 47:03
The future is that the question not the future. Nina,
Amanda Levendowski 47:06
I forgot to ask you your question. I was just so eager. Yes, I want to go back to your chapter, which talks about it recenters The women who were the original computers, and they were systematically excluded from software patents for a host of socio technical and policy reasons. How do you see women's roles and patents now as both professors and practitioners?
Nina Srejovic 47:32
Yeah, so, so yeah, I did look, as I mentioned. I looked at the history of computer programming and the history of patenting computer programs, and I found that I can't, I can't say there's any causation, but there's seems to be a correlation, that when women were doing the software, the computer programming, it was viewed as using the machine, operating the machine, this machine that men, because men were the ones who had access to inventing the hardware that men had invented. So women weren't doing anything creative. Their careers were they were classified as sub professional in their government work. But then in the late 60s, there was, there may have been a shortage of computer programmers, at least. That's what a lot of men who had started computer programming wanted to argue. How convenient. And so, yes. And so there was a big push to professionalize the occupation so that they could get more people interested in doing it. There was, there were, you know, departments started in universities where there wasn't any of that earlier, there was it was now termed software engineering to make it sound more technical. So it all became this professional, respected career path. And as that happened, it was mostly men doing the work. And then all of a sudden it became creative and innovative. And the despite all the activities that these early women computer programmers were doing in the 40s, 50s, the first computer, what most people say is the first software patent, was in the late 60s, right when this was happening, right when this transition was happening, where the occupation was turning from mostly men to mostly what I mean, mostly women to mostly men. So it just made me think that, oops, I'm going to jump to future now. So maybe I'll let you ask that question before I jump. Did
Amanda Levendowski 49:38
you just, did you just set me up for a segway. This is the most I tried. I tried. We are going to briefly go around, and almost, one might say, if they're familiar with the IP clinics work. We're going to do a round robin, thinking about the future. And it's a little foot in the present, little foot in the future. And I'm going to wrap up, and then everyone can go into. Of the lobby. But Nina, I want to start with you. I'll continue. Who do you most wish would read your chapter, and who do you wish that person would send it to? And if you want, I'll be your hype woman. I will definitely email all the people you mentioned this podcast. I'll do it. It's a threat and a promise.
Nina Srejovic 50:22
Can I say group of people, patent examiners? I wish they would read the chapter, because I think that they right now, the solutions, I'll be quick right now, the solutions proposed are all about women doing more. There's there's an air quote, so there's a natural national strategy on inclusive innovation. And you know, they're all ways to have women get more education, teach more because they feel like in universities, they need to have more female professors, which is probably true, and stick at their work more, do more work. It's all women doing more. And I think that the history of computer programming and patents shows that there may be other levers we can push, things like educating patent examiners on different types of innovation, different types of being, different ways of being an inventor. And I think it's also important that it's usually a shortcut to measure innovation by patents, and I think it would be helpful to not do that, given the biases that are in the patenting system and that we should measure innovation more inclusively
Amanda Levendowski 51:32
amazing as we're talking about the future, I'm going to try something that may not work, and you're all going to be so fine. If it doesn't, I can just tell I'm going to try to after each person speaks, connect what they've said with another piece of reading from another scholar that was not part of the volume. And I feel like if what Nina's saying is resonating with you around women and patents and different types of knowledge being relevant for examiners, you would love the work of Jordi Goodman. I think it's very aligned with a lot of those conversations, and I think it would bring you both further into conversation with Nina's work, but also push you in a new and exciting direction. If you so choose,
Anjali Vats 52:12
go ahead. Oh, same question. Yeah, same
Amanda Levendowski 52:13
question. Everyone's getting the same question, to read your piece, and you can if you like, who would you like them to forward it to? Oh,
Anjali Vats 52:21
I'd like Joe Biden to read my piece. Joe Biden, who I think he was, the one I, you know, I mix up Steve Wozniak and Joe Biden. So maybe both of them are no no, sorry, I don't
Amanda Levendowski 52:36
need to forward it to who, which direction is the forwarding going? It's
Anjali Vats 52:39
a good question. I don't actually mix them up. I mix up which of them said this. That's an important distinction. It was a comment about the lack of innovativeness of Chinese people, right? The sort of inability of Chinese people. I think Steve Wozniak said, Indian people have never had a new idea, idea. And then Joe Biden was talking about China and their lack of inventiveness. So lots to go around. You know, it's got, I can't believe that maybe Joe Biden doesn't forward his own email, so I'm going to have to guess it goes the other way around. But, yeah, I think one of the things that I have been thinking a lot about is this sort of consistency of bias over time, and what it means to think about really unlearning the habits of racial bias and gender bias, and how we can do that in a way that's actually productive, because it's It's sort of jarring for me to look at these conversations from the 1980s about the VCR wars, or about semiconductors, or about, you know, Chinese restaurants in the 20s, and have those same tropes Be persistent. So I just, I guess I'd like to see a little bit of innovation there, like maybe we can do do things a little bit differently in terms of of equity, and I'm not, I'm not sure what the what the path out is, but I've been thinking a lot about empathy and perspective, taking as as responses to these sorts of strong man approaches and racial bias and so on. So, yeah, I think I might have skipped the second half of the question, but that was fine. Got most of it, Steve
Amanda Levendowski 54:27
and Joe. I get it, Steve and Joe, I would really recommend that if you can, attend, whereas abolitionist futures conference Pittsburgh, gonna be in Pittsburgh, beautiful Pittsburgh. Go to the Warhol Museum. Eat some delicious food. Hang out with some wonderful people. But more importantly, all the papers will be posted to an online repository. So even if you can't make it in person, I feel like if you resonated with these conversations about race and IP that Anjali has been teeing up for us so beautifully, you would love any one of the pieces both from the abolitionist futures session this year, but also go. The archive of papers that have been presented at the race and IP conference in the past, and I bet you're gonna find some point something that moves you.
Gabrielle Rejouis 55:12
I guess it's a hard question. I think, because I think antitrust, like I already mentioned, like is so key to so many different fights. I think the first group that comes to mind are folks who are interested in online like content moderation, very broadly, but I think very specifically, like folks who are looking at online gendered violence. There was one of the women who was key in the year slip is showing movement, who passed away earlier this year from long covid. And there was just a renewed conversation about, like, online violence. And I was just sort of like, oh, like, everybody's like, moving off of Twitter to go to like, blue sky or Macedon, and I'm or even, like, you know, whatever the other options are. And I'm like, the the problem is, it's, it's I'm going to say something that contradicts something I normally say about antitrust, right? But like, or antitrust as a tool for content moderation, right? Like, the issue is not going to be better because you're on another platform, if there is still platform power that is not being challenged, like you're going to encounter the same online violence. But the thing that I normally say, which is the contradiction, is that the platform, if the platforms are smaller, there's the effect, and the reach is smaller. And so there is, like a benefit, at least in that point of view, where you don't have something that's that's misinformation being viewed by millions of people. And so I think I really want more folks to be thinking about antitrust, so that way we can put more pressure to get this tool in the hands of more folks really want to break down silos around disciplines content moderation folks don't talk to antitrust folks, and then they're pitted against each other, which is what we saw when there was, I will say, like a misreading of one of the antitrust bills, and there was concern that it would throw section 230 of the communication Decency Act out altogether. And so for that reason, I want you know folks who are interested in online gendered violence to read this, and then I want them to forward it to Majority Leader Chuck Schumer, so that way he can allow antitrust legislation to get to a full floor vote. So yeah,
Amanda Levendowski 57:17
I'm actually going to cheat on yours and get kind of meta, if you're you know, toward the end of your answer, you mentioned Communications Decency Act, section 230 which actually intersects with not just content moderation, but a lot of the issues we've been raising. And if you are curious about a very unconventional approach to interpreting section 230 Kendra Albert has a truly excellent essay in feminist cyber law about the Communications Decency Act as a non reformist, reform that may abolish criminal law in some circumstances, and they're not here to correct me, so you know that that's right, but if you just there's so much interdisciplinarity among the essays in this volume, and I love that you gave us An opportunity to bring two pieces together. No pressure. Cynthia,
Speaker 1 58:04
hey, Kendra and Kendra, who
Amanda Levendowski 58:10
do you want to Who do you want to read your piece?
Speaker 1 58:13
I also just can't continue without saying and hackinghustling has such good stuff on 232 if you really want someone conventional writing about 230 so as I mentioned, demonstration projects are what we're focusing on, the type of procurement. And I recently testified at a hearing at the Procurement Policy Board, which is a New York City Board for which zero members showed up to hear my testimony, and there was food, I think there was three, like summer interns, maybe, who, like pressed record on the Zoom, you know, just to say We should fill up the spaces that do exist for democracy in the procurement process, because they are trying to expand demonstration project procurement to allow companies to be able to come in gather the type of data they need from a city's infrastructure in order to be able to customize more specific types of technology that they will then do what Apple does to us with the earphones and package back to us in this very exclusive way that just really cements corporate lock in and what corporations literally call their capture strategies of a market which like we're the target of and so I think that the challenge For our organization, surveillance resistance lab is to make issues like procurement really digestible for the public, and not just for, you know, everyone who might show up at a Procurement Policy Board meeting, like wonky, you know, fake academics, fake scholars, fake. Litigators at this point, but as one organizer challenged me recently, how do I explain this to my grandmother? And the reason that I wrote about bouquets was because I really wanted to write something that people could share with their grandmothers, but also something that sort of flipped the table. And so I would, I would say that I would love for people to read this if they're concerned not just about privacy, and we say it surveillance resistance lab, we're not just concerned about privacy and surveillance, we're concerned about power, and what it means for a corporate entity to come into a system like the criminal legal system, which is the one that I know best, and to say that your adversarial testing rights in the Fifth Amendment mean nothing compared to our R and D that requires a very different response than an NDA and an attorney's eyes only and those kinds of really limited litigation tools. And so we really need to to motivate beyond the courtrooms, beyond litigation solutions and get our grandmothers involved.
Amanda Levendowski 1:01:07
I love that you're speaking about privacy, surveillance and power, and I do feel like that speaks to several of the other essays in this volume, specifically the ones by Elizabeth Joe which tackles privacy from a legal perspective, post Dobbs, but also work by Karen Levy and her PhD student, I think, now graduate and now Doctor Michelin Meester, who looked at Dobbs, but from a socio technical lens. So technologically speaking, what can be done to resist invasions of privacy and to prevent surveillance? But on the issue of procurement, I actually want to this is like about to be a full full circle moment. So when I was a student at NYU Law, I was a member of the technology, Law and Policy clinic, which was directed by Professor Jason Schultz. Some of you are nodding. Love that for you. But when I was here, I actually worked at the ACLU. I were about to bring it full circle to you, because now you're last I worked at the ACLU, and I worked with a woman named Katherine Crump. And Katherine Crump, the year after I left the ACLU, wrote a pretty landmark piece about procurement policy that put it on the maps of a lot of people that were not previously thinking about it, and to bring it even more. NYU, several years later, that was followed up with a really, additionally groundbreaking piece by Professor Ira Rubinstein about procurement policy. So if the procurement issues and the trade secrecy issues are resonating with you between like, the threats of the three of them, and then, of course, Professor Kathy Strandberg, who was on the ground advising this team as it was developing, they're really, I mean, other than Georgetown, I'm just kidding, there's really not a there's really not a better place to be doing that work. And I hope you'll go read some of those pieces as well, because now, because now you're the Katherine Crump of the ACLU for the I
Esha Bhandari 1:02:47
literally took the position when she left Berkeley, but I didn't, that's a flattering comparison. So if I could send my piece to anyone, I would like everyone in Congress to read it, because I think that we need to reform the Computer Fraud and Abuse Act, which was passed in the 80s, before we had anything like the modern internet or our interconnected digital world, and it has outdated, antiquated notions of trespass and private property and hacking that simply Do not translate to the nature of information flows. And you know what, what happens today? And I think that reform is necessary and can't be put off. And I would hope that this is a bit of a cop out, but I would hope that they would forward the article to the nine justices of the Supreme Court, so that if they are going to, you know, take an expansive view of First Amendment rights. For some they not lose the opportunity to guarantee one of the core purposes of the First Amendment, which is that of a free and independent press and all the research and researchers that go along with it, which we are in danger of losing in a digital age if we cannot continue to have that kind of data journalism work. You teed up two pieces. Actually.
Amanda Levendowski 1:04:05
The first piece is talking about the First Amendment. And specifically, if you think about tech, there's a real cyber libertarian approach that developed in the 90s with John Perry Barlow and kind of carried through the like the sort of old school first wave technical advocacy movement and Hannah block web has an excellent piece tracing this history in feminist cyber law, talking about, you don't get more cyber libertarian than having the EFF in an old porn studio, right? And that's kind of where she starts her story. But the other piece I wanted to mention is by an additional scholar practitioner who's now about to be more practitioner than scholar Andy sellers, who wrote a really wonderful piece going through 20 years of history about Computer Fraud and Abuse, act decisions about web scraping. And one of the things that has always stood out from that piece is the recognition that this is a criminal law that has had outsized effects on so many people in a. Just profoundly damaging way that may be the only federal law inspired by a Matthew Broderick movie, and I think we should sit with that a little more. And I encourage you to sit with that with some cheese and a glass of wine. I hope you feel like this is a full circle conversation more than anything. I hope you felt seen in this conversation with at least one of the people speaking, but really all of us, and that includes the guys in the room. Thanks for coming out for feminist cyber law Andy sellers famously thrown in as a token guy right at the end there. But everyone else we mentioned was a woman or non binary person. And I think when we're talking about issues of technology, we are so rarely in the room, and so rarely is there more than one of us that it is really such a rare pleasure to be with you tonight, and I hope it felt special to you, because this was a really special night for me. So thank you for coming out, and let's all go celebrate. You. Music.
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