Get To Know 23-24 RSM Visiting Scholar: Anupam Chander
Anupam Chander is the Scott K. Ginsburg Professor of Law and Technology at Georgetown University Law Center. He is an expert on the global regulation of new technologies and a 2023-2024 Visiting Scholar with the Berkman Klein Center’s Institute for Rebooting Social Media.
What legal or ethical concern do you think should be top of mind for us given the landscape of technological advancement today?
I worry that at some level, we have almost vanished into a world of conceptual harms, where the worst thing that can happen is something that affects our digital dignity in some way and that we now treat that as far more significant than the lived experience of most people on the ground. [Lawrence] Lessig, in his book, Free Culture, spends some time talking about an earlier essay written by Julian Dibble in the Village Voice, a newspaper distributed for free in New York, about an avatar that is raped in cyberspace, in a kind of proto virtual community akin to Second Life. I totally believe that there are these kinds of dignitary harms in cyberspace and that we shouldn’t neglect them. But I think at some level, we have constructed a world that is focused on these harms in cyberspace without thinking about the needs of real people and their material existence. And of course, social networks are connected to both your immaterial and material existence. So, I don’t mean, by making any kind of distinction, to exaggerate this difference; our lives are both imagined and lived, and both are central to our well-being.
It's interesting that you are talking about harms in this way, because your book, The Electronic Silk Road (Yale University Press, 2013), talks about e-commerce and how the development of this form of trade affects the material well-being of people on the ground in a beneficial way. In what ways does that book inform your thinking now, a decade later, and how has your thinking changed since you wrote it?
I’m glad you mentioned this. That book is really a kind of central pillar of my thinking, which is the fact that the internet really makes it possible for people to benefit from the wealth of the world without [the cost of] having to emigrate and participate by enormous dislocation, which is often impossible because of law.
So, the 20th century was about the globalization of goods, right? That’s the argument in The Electronic Silk Road. Trade empowered people all across the world, it gave them access to goods, to markets, [but it also] caused enormous dislocations for people who were now subjected to competition that they weren’t subjected to before. And the 21st century, I argue, is really going to be necessarily the century of trade in services. So, goods are heavily subject to trade across borders. Services are not. So, there’s an enormous room for potential for services to grow. Everyone who is working from home today could be replaced by a service worker who is not within that state or even country…I think it’s a kind of inexorable shift, and so you’re going to see lots of efforts to protect against it. Some of my recent work has been focused on how privacy can be used to stop that kind of foreign service provision, because [privacy] is seen as a legitimate basis for preventing personal data from flowing to foreign countries.
So yes, those are the kinds of things that my work is generally about: empowering people, especially in increasing material wealth across the world as the first most urgent need.
Tell me more about where this intellectual interest of yours came from. How have you come to see problems the way you do? What has shaped your point of intellectual worldview?
[This became important to me from] studying economic development with Amartya Sen. At Harvard, I wrote my thesis with Amartya Sen and became very much interested in how economic development has worked or failed over the last century and what kind of role technology plays in that. So, undertaking writing The Electronic Silk Road was really a process of discovery in trying to understand that [development] story. In the process, I discovered how the US became a global leader in technology. I had a short four pages in my book about this topic—on how law made Silicon Valley. If I ever had an epiphany in my writing, then this was it; I could not have been more excited when I realized that essentially, law was critical to what would become the business model of the Web 2.0 revolution. (Web 2.0 is where companies provide free services in exchange for personalized advertising.)
[In America], we minimized the tort liability that arises when a service offers people the opportunity to trumpet their views to the world, and we developed a privacy regime with permissions that allowed companies to gobble up information about people and their exchanges in order to target advertising towards them. So, we both reduced liabilities and increased permissions for this kind of targeted advertising, and that combination [of legal actions] is what created the infrastructure for the Web 2.0 [revolution] of Silicon Valley as we understand it today.
Given that the United States has long embraced the free flow of information, I was surprised to find that we now see this as a threat. The national securitization of personal data is the now dominant framing in our legal thinking and one that I worry about. Of course, information flows can be a security threat, and disinformation is a serious issue. We know that adversaries are gathering an enormous amount of data. But I found TikTok to be an odd choice for national security concerns and I think it becomes a distraction from better cybersecurity approaches. By giving the executive a hammer to go after it, I think we may enlarge executive powers in ways that could harm our civil liberties in the long run.
For instance, with President Trump in 2020, the check on [enlarged] executive power was the courts; but [President] Biden is trying to get rid of those checks, with things like the RESTRICT Act which [President] Biden has endorsed in Congress.
A big question I want to address during my fellowship is “Are we going to give the president power to control the apps on our phone, or where our data will flow, or who can speak with us? What powers should we grant the president over our information infrastructure?”
Interviewer
Ashley Mehra is an incoming 1L student at Yale Law School. During the summer of 2023, she interned with the Berkman Klein Center, where she supported Professor Jonathan Zittrain’s projects.