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By Aaron Bady
Anyone claiming to be an expert is selling something. I brandish my ignorance like a crucifix at vampires.
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#NotAllPublic, Heartburn, Twitter

FB post twitter“a gentle reminder of a fact: Twitter is public.” —Hamilton Nolan

“I first learned that people don’t realize Twitter is public during Boston marathon.” —Dave Weigel

“Public tweets are public. This is a fact, not a value judgment.” —Elizabeth Nolan Brown

“Yes, Twitter is public. But” —Amanda Hess

“Am I doing harm by amplifying this content?” —Jillian York

To say “twitter is public” is to beg the question that “public” means something. It’s not even wrong to say this sort of thing: the fact that it’s true, that tweets are public, is so obviously true that you can forget to notice that it’s irrelevant, which is the point. Legally, tweets are public. And if “the legal” is what describes and circumscribes your sense of the ethical, you can stop there.

But do you want to? Maybe “not illegal” is not the best way to think about the range of things it is acceptable to do. It is legal to be a cruel, malicious asshole, for example; it is legal to be hurtful and exploitative to strangers, to callously use people without worrying about the effects of your actions. It is legal to make money doing things which hurt other people, as long that thing is not illegal.

Maybe legality, then, is of limited usefulness in figuring out how to be a person.

As Helen Nissenbaum points out, we often often understand

“a right to privacy in terms of dichotomies—sensitive and non-sensitive, private and public, government and private…That which falls within any one of the appropriate halves warrants privacy consideration; for all the rest, anything goes.”

The clarity of binary dichotomy, however, is deceptive. It promises (and aims for) a neat resolution that it can only provide by abstracting out of existence the actual social situation in which the actual event occurred. “Anything goes” might describe a useful legal principle, but it’s a very poor way of describing how most people actually behave. As Nissenbaum goes on to point out,

“there are no arenas of life not governed by norms of information flow, no information or spheres of life for which ‘anything goes.’ Almost everything—things that we do, events that occur, transactions that take place—happens in a context not only of place but of politics, convention, and cultural expectation…Observing the texture of people’s lives, we find them not only crossing dichotomies, but moving about, into, and out of a plurality of distinct realms. They are at home with families, they go to work, they seek medical care, visit friends, consult with psychiatrists, talk with lawyers, go to the bank, attend religious services, vote, shop, and more. Each of these spheres, realms, or contexts involves, indeed may even be defined by, a distinct set of norms, which governs its various aspects such as roles, expectations, actions, and practices. For certain contexts, such as the highly ritualized settings of many church services, these norms are explicit and quite specific. For others, the norms may be implicit, variable, and incomplete (or partial).”

What Nissenbaum is describing is the lived texture of a social world for which the necessarily dichotomous structures of the law is totally and painfully inadequate. Law must pretend that something is either legal or not, and that courts have the power to say which is which, and make it true; being an ethical person in the world, however, must recognize that calling anything “fair game” is inevitably a first step towards normalizing some form of predatory behavior.

This is why “legal” and “ethical” are not, and should not be, synonyms. If something is legally fair game, only someone who has outsourced their ethics to the state would assert a categoric and overriding right to use and possess it.

If your sense of ethics extends beyond merely “not illegal,” on the other hand, the decision about whether or not to treat someone’s twitter feed as fair game is more complicated, something that cannot so easily be incorporated into self-righteous assertions of “fact.” It is generally legal to take pictures of people in public spaces, in places where they have no expectations of privacy. Is it ethical to do so? The “creepshots” problem illustrates one of the most glaring flaws in this reasoning, as do the various surveillance state interpretations of what is and is not public: for people who have utterly amoral, exploitative, and an essentially predatory interest in acquiring recordings of people and things—your creeps and your NSAs, but I repeat myself—the legal limitations on the acquisition of publicly available data is so inadequate as to be almost nonexistent. In such a context, “not illegal” means that almost nothing is off-limits: “not illegal” gives you permission to let your ethics be dictated by the state, which is to say, not really to have them.

It is also worth saying that to use “not illegal” to assert the “fact” that twitter is public—and to treat that assertion as something so self-evident that only “people” (in their notorious ignorance) could think otherwise—is willfully stupid. For one thing, it betrays a nostalgia for the easy objectivity of an ethic-less legal order. Ethics are complicated and ambiguous, an ever-evolving and contingent problem that you never really solve. Beware anyone who thinks they’ve done so. Resorting to a faith in legality as the deciding factor—the fact that the law governing intellectual property declares twitter to be public—is a comfortable simplification. It allows you to pretend that if something is not illegal to do, then the fact that it’s legal to do so is also the fact that it’s okay to do so. The first can be a fact; the second can only be an assertion.

I’m generally agnostic on the actual laws which declare some forms of utterance to be public and some to be private. I was not consulted in the writing of this law, and since the force of such law rests on force, on the state’s ability to punish those who break its dictates, it seems to me that the legality of quoting tweets is something entirely separate from the question of whether it’s good to do so. I feel no compunction in quoting and linking to people who assert that twitter is public, then; not because I agree with them (I don’t), but because they agree with my decision to do so. They have pre-emptively consented. By the same token, however—but the other side of the coin—the act of linking or quoting someone who does not regard their twitter as public is only ethically fine if we regard the law as trumping the ethics of consent. It’s not always easy to tell which is which, especially when people want to have it both ways, when some of their speech is off limits and some of it is not. But would respecting people’s right to define their own autonomy include respecting their desire to have it both ways? I suspect that people who are outraged when someone wants to have their cake and eat it too are actually, themselves, interested in eating cake.

All of which is to say that I don’t know how you can be a leftist and also claim that quoting someone’s words—in ways they feel is improper or violent, and to which they have not consented—is ever okay, especially when you use the “fact” of its legality as a reason to ignore their wishes. This seems like a very libertarian position to hold, or a neoliberal, or perhaps just capitalist; freedom and rights, from such a perspective, always turn out to favor those who use and exploit, over those who are used and exploited. Production is everything, and the externalities disappear.

It’s therefore not surprising that you find a Libertarian magazine using the utterly discredited “tragedy of the commons” trope to assert that everything is the private property of whoever manages to grab it. When someone from that perspective reads, approvingly, the words “I assume that if someone is saying something on Twitter, they want it to be known,” in an article whose title trumpets the right to ignore consent, it should be clear that we are talking about assuming people’s desires even when the people, themselves, say the exact opposite. You may think you had an expectation of privacy; we will tell that you were wrong, that your expectation was unreasonable.

In contrast, if you quote someone and circulate their words in ways they turn out to object to, it seems to me that you have an ethical responsibility to listen to them and learn from their objections. All things being equal, you should probably do whatever they want you to do; the fact that it’s your business doesn’t mean it’s not their’s too. But to pretend that this is a simple problem—that there is an easy one-size-fits-all solution to the question of when and how you can use other people’s words—is utter fantasy, and often—I think—a willful disinclination to engage honestly with the consequences of your own actions. Legal actions still have consequences, always. And while you can predict, in advance, whether an action will have legal consequences (at least sometimes), you’re never going to know, in advance, how your actions will affect others. That’s why you have an ethical responsibility to find out, to listen to and respect them, and do what you can to make recourse for the fuck-ups that inevitably result. Good people fuck up, constantly; good people hurt other people, constantly, without not being “good” people because of it. The only interesting question is whether you try to help with the problems you create, or if you hunker down and insist that everything’s fine and other people should fuck off.

There’s a backdrop to this post, one which—if you’ve read this far—I suspect you are aware of. I’m not going to describe it. That’s because I can’t, because I won’t try, and not only because it hurts. With the exception of people who have given explicit permission for the world to use their words as it sees fit, most of the people involved in this imbroglio (and I have a dubious place of honor at the bottom of the heap) are simultaneously angry about how some people’s words are being used and also angrily using other people’s words to show that those people are using words wrong. There are a lot of angry double standards whirling around out there, and people are losing fingers, left and left. As a result, a big part of the little corner of twitter that I occupy has, over the course of the last few days, collapsed into a whirling cycle of mutually reinforcing clusterhatefuckery, and every rail feels like the third one, and I feel something for which “trauma” is not the right word, but for which it’s the closest word. I don’t know what the right word is. In any case, I’m stepping back for a while. I have heartburn, and could barely sleep last night, and I have deadlines to meet, and I still have heartburn, now. I want that to stop; I want to stop burping up air. It will stop, if I stop eating spicy foods for a while and let my stomach recover.

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