Norms in a Wired World5/10/2004 |
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Book Review In March of 1928, a tug boat called The T.J. Hooper encountered bad weather off the coast of New Jersey and lost the barge of coal it had been pulling. Had the ship had a working radio, it would have become aware of the storm ahead and might have saved its load. But radios were a relatively new invention and it was not the custom in the shipping industry at the time to equip boats with them.
Custom carries great weight before the law and is very often the source of law. The social norms and preferred practices that a specific community or industry has developed shapes behavior and affects legal expectations. If commercial custom in an area has for a long time held that debts are not delinquent until a day after they are due, then a court will treat that as law and will not penalize a debtor who took advantage by paying a day after the date on his note.
Despite the primacy of custom, Judge Learned Hand found the owners of The T.J. Hooper liable for the loss of the coal citing the lack of a radio as negligent. He wrote: "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." Even though it was not the norm for ships to not have radios, Hand was saying, the norm should be the opposite and that is the law he applied.
In "Norms in a Wired World," Steven A. Hetcher tries to put forth a new conception of norms and apply it to tort law, as well as the emerging field of online privacy. Hetcher succeeds in conveying a capable new description for the concept of norms, but that may be all he does.
We all understand that there are certain unwritten rules in society which guide our behavior. Apparently, however, there is a fair amount of debate about what exactly are the contours of these norms. Like the concept "law," the idea of "norms" has an intuitive meaning that might be articulated differently by each of us. "Law is not a natural kind like uranium or hydrogen with an ontological status apart from the meaning that people have given to the term," Hetcher notes. "Over the course of its existence, a linguistic community plays a language game with the word law, and thus it becomes culturally defined."
It is just such a semantic game that Hetcher engages in this book. His proposed definition is that norms are a pattern of rationally governed behavior, instantiated in a group, maintained by acts of conformity. Hetcher proceeds to spend the first third of his book defending this definition against other previously proffered definitions by tearing down a series of straw men.
Hetcher most wishes to do away with the conception of norms that holds them out to be linguistic artifacts that are prescriptive and enforced by sanctions. That is, that norms can be vocalized as discrete rules and are imposed from on high. He demonstrates using simple game theory models that many norms exist without any discernible sanction to keep them in place. Instead, actors might conform to norms to enjoy the benefits of coordinated behavior.
Hetcher also makes clear that norms are also often sufficiently complex and subtle to not be susceptible to verbal description and transmission. This undoes a key component of his rival definition of norm. However, although he shows that norms might come into existence as groups conform to a pattern of behavior that is in their rational and moral interest, he doesn't satisfactorily explain why certain norms win out over others that might accomplish the same ends.
While he does mention them in passing, Hetcher might be helped here by the work of social evolutionary theorists such as Paul H. Rubin. It might well be that norms undergo a selection process and the fittest ones survive.
When Judge Hand decided The T.J. Hooper case, he implicitly held that norms might not be created quickly enough, and that courts should not wait to recognize them. This was a break with the historical jurisprudential relationship between law and custom. It ushered in the modern rule of custom, which holds that social norms are not always dispositive of negligence questions, and might sometimes simply convey evidentiary information about negligence. Hetcher terms these the per se rule versus the evidentiary rule of custom.
The mystery here is understanding why judges apply one rule sometimes and the other rule other times. Hetcher spends the second part of his book developing a system for understanding the thought process of courts. Along the way he rejects the currently dominant suggestion of Lander and Posner that courts apply a per se rule when there is actual or potential pre-tort bargaining between the parties to a suit. The idea is that by bargaining the parties will reach the economically efficient and welfare-maximizing outcome and that this outcome will be reflected in the norms they adopt. By giving effect to a per se rule, a court insulates the bargain against redistribution by a jury.
Hetcher, however, points to non-bargaining situations where a per se rule has been adopted and vice versa. This seems to undo the predictive power of the Landes and Posner's economic theory and Hetcher concludes that courts have "not demonstrated a sophisticated understanding of the relevant complexities of customs," and have applied different legal treatment to different customs "by means of an intuitive methodology that failed to articulate explicitly the rationale for applying particular rules to particular structures."
But perhaps the reason Hetcher is so unsatisfied with the haphazard approach of courts is that, like the rest of us, courts only posses an "intuitive" understanding of the what norms are. They have not come to the realization that norms require a definition that can be systematically applied. To help them, Hetcher cobbles together a complicated system of norm-identification that can better determine the custom rule to apply.
In the final part of the book, Hetcher picks online privacy as a case study to which to apply his conception of norms. He purports to paint a picture of how social norms developed to tame the wild west of the early web. But his story rests on key assumptions that are not irrefutably established.
To begin with, Hetcher assumes that the only privacy norms in place at the beginning of the commercial web were those that allowed websites to freely pillage the private data of consumers with impunity; users were helplessly unaware of any misdeed. But it might as well have been the case that the norm was that consumers were content with the low level of privacy offered in their online activities until "norm entrepreneurs," as Hetcher calls them, convinced them otherwise.
Hetcher writes that early norms "were completely geared toward serving the interests of the website industry," and that they "did not reflect any informal bargaining taking place between websites and consumers." However, he admits that consumers were free to decide which websites they would visit and could also decide what personal information personal information to give. Although the implications of online interaction were not as explicitly explained as they often are today, it short-changes consumers to believe that they had no idea that there were any implications for their privacy or that they were incapable of making intelligent choices. One would also think that commercial websites would be conscious of the effect that their data collection activities would have on their relationships with their customers and would act accordingly. It is therefore not completely clear that there was no informal bargain even at this early stage of the web's development.
These potentially faulty assumptions might have their root in a poor definition of the sites being discussed. Hetcher refers throughout his book to the "website industry," as well as to "small websites" and "large websites," without clearly explaining what he means by these terms. It might have been more useful to identify legitimate commercial enterprises on the web that have a vested interest in their relationships with consumers in contrast to the shadier operations that the inexpensive but extensive reach of the web makes possible. Such a distinction would require a quantifiable criteria that is not found here.
Additionally, online privacy seems to be an odd choice of a case study to which to apply pattern conception of norms. Hetcher seems to place great value on a theory of norms that can account for rules that develop to solve coordination problems without the need for a top-down architect that verbally articulates the rule. But his own account of the development of online privacy norms depends on privacy activists who first had to create the notion that there was a privacy problem which was in need of a solution.
He is also very innocent about the motivations of these "privacy norm proselytizers." While he applies a public choice analysis to the FTC to understand why that government agency would choose to enter the online privacy arena (and concluding that it wanted to extend its regulatory reach), he does not apply such an analysis to determine the motivation of activists. He also casts doubt on the public positions of commercial websites because "industry speakers can be expected to seek to maximize profit, not candor." On the other hand, he writes, "because of the lack of a parallel profit motive, there may be less reason for cynicism with regard to the distance between the expressed views and the actual views held by public-interest privacy advocates."
Now that activists have created a demand for privacy - that is, created a social norm that regards privacy as an entitlement or a right - the mystery is why has the "website industry" not supplied it, or has even feigned its supply. While Hetcher acknowledges that this demand "may not be backed up by a level of willingness to pay that will support the marginal cost of additional supply," he insists that more demand should generally lead to more supply. But it might be the case that the optimal supply may have already been reached; perhaps there is a strong informal bargain between consumers and websites that is not affected by activists.
Consumers regularly answer poll questions claiming that they place a very high value on their online privacy, but their online behavior demonstrates that they are quite willing to part with personal information for a benefit, access to an online newspaper for example. In a vacuum, the proposed privacy-entitlement norms of the proselytizers sound great and may even appear to have succeeded. However, it might be the case that some other social norm is actually operational. The legal, sanction-driven pressure the activists have been able to bring to bear on commercial websites might explain why some have feigned supply.
In his book, Hetcher admirably extends the idea of norms beyond the narrow linguistic view. He makes a good case for a more plastic conception of the nature of social norms; a nature that is more subtle, potentially developed by selection, and not dependent on top-down sanctions. However, the application of his theory is not always convincing. He makes a good attempt at critiquing predominant economic analyses, but it is not obvious that such analyses are incompatible with his theory. |
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