You already know one side of the lottery ticket debate.
Now, here’s the other side, brought to you by the State of California:
You already know one side of the lottery ticket debate.
Now, here’s the other side, brought to you by the State of California:
Others have written—some quite critically—about the government’s decision to charge Dzhokhar Tsarnaev with “unlawfully using and conspiring to use a weapon of mass destruction.” Colloquially, most people have come to associate WMDs with nuclear, biological, or chemical weapons.1 But 18 USC § 2332a(c)(2)(A) says that “any destructive device as defined in 18 USC § 921” is a “weapon of mass destruction.” Section 921(a)(4)(A) in turn, says that bombs, grenades, and rockets, among other things, are “destructive devices.”2
Since the IEDs used in the Boston attacks are clearly “bombs,” the § 2332(a) charge is pretty straightforward. People can argue about whether that statute is too broad, and whether other laws against, say, murder, would suffice. But what caught my eye in § 921(a) was the grenade and rocket stuff.
It turns out that another way to say “grenade launcher” or “rocket launcher” is “flare gun.” The government knows this and doesn’t really care about your flares, so there is an exception in 18 USC § 921(a)(4) (and in 26 USC 845(f)(3), an identical provision in the NFA) that says that a “signaling, pyrotechnic, line throwing, safety, or similar device” is not a destructive device. (Presumably, the ATF would say that a signaling device that is used to launch grenades is no longer a signaling device.)
Whether certain kinds of launchers are WMDs thus depends on what sort of ammunition you use or plan to use.3 Firing unregistered grenades or rockets obviously triggers § 921(a)(4)(A) and an avalanche of criminal liability. That makes sense.
So what’s between a grenade and a flare? Well, according to the ATF, “cartridges containing wood pellets, rubber pellets or balls, or bean bags” are “‘anti-personnel’ ammunition,” so 37/38mm launchers containing such loads are d̶e̶s̶t̶r̶u̶c̶t̶i̶v̶e̶ ̶d̶e̶v̶i̶c̶e̶s̶ WMDs. That’s right: launcher + bean bag round = WMD.
DYODD and check your state laws, but it appears that in some jurisdictions one can order a pretty serious launcher and have it shipped right to his doorstep; absent “anti-personnel” ammo, the federal government doesn’t even consider it a gun. Just stick to fireworks and take care not to possess (let alone fire) any bean bag rounds if you don’t want to spend “a term of years, up to life” in Leavenworth.
By this definition, of course, there were tons of WMDs in Iraq. Not that definitions must be consistent across domestic/international or colloquial/technical contexts, but that’s at least worth thinking about. ↩
Under federal law, 40mm launchers are always destructive devices, and thus must be registered to be lawfully possessed. Launchers < 40mm, as far as I can tell, are different. ↩
Well, I am officially a lawyer! Yesterday the Judicata team went over to the James R. Browning Courthouse, where Alex Kozinski, the Chief Judge of the U.S. Court of Appeals for the Ninth Circuit, swore me in to the California Bar. (Or did he? Technically, I affirmed an affirmation instead of swearing an oath. More on that in a bit.)
First, we got a private tour from Kathleen Butterfield, one of the Court’s staff attorneys. The Courthouse is, in a word, incredible. I think that most of what we saw is open to the public during the Court’s bimonthly public tours; if you’re near San Francisco, please, take my advice and attend one. (You might ask if or when Kathleen is leading a tour—she is terrific.)
(1) So much Italian marble it makes the Hearst Castle look budget:
(2) The bar—literally. Before law schools existed, would-be lawyers would study the law under another lawyer’s supervision. Getting admitted to the Bar involved standing behind the bar with your sponsor and fielding a bunch of questions from the judges. Get enough right and you’d be permitted to—wait for it—literally pass the bar.
(3) The bullet hole from the Hindu-German Conspiracy Trial. In 1918, not five feet from where we held our ceremony, a defendant shot and killed his co-defendant and was then promptly shot to death by a U.S. Marshal. (Amazingly, no mistrial occurred; everybody was found guilty the next week.) You can still see the damage caused by one of the bullets when it hit the judges’ bench—check out the aberration in the tilework, just to the right of the seam in the marble:
After the tour, we hung out in Courtroom One until Judge Kozinski freed up.
After the Judge came in and met the rest of the team, I asked if he’d mind if I chose to affirm rather than to swear. Legally, there’s no difference. Swearing is traditionally perceived to have a religious component to it, whereas affirming is completely secular. This is a pretty mainstream option—the U.S. Constitution explicitly follows every “Oath” with “or Affirmation,” and the official California Bar incantation reads “swear (or affirm)”—but I’d bet that it’s seldom exercised. (Of all my lawyer friends, I know just one who affirmed, and we had discussed it beforehand.)
Why would anyone be so fussy? Naturally, atheists or radically liberal First Amendment zealots tend to be quite interested in keeping things as secular as possible. But even theists have their reasons:
> But I say unto you, swear not at all: neither by Heaven, for it is God’s throne;1
> But let your communication be ‘yea, yea’ or ‘nay, nay’; for whatsoever is more than these cometh of evil.2
Personally, I chose to affirm because (a) I could, and (b) it seems cooler. Presumably, some of our forefathers argued long and hard to win for us the right to affirm. Why not throw them a cosmic wink? Plus, if it was good enough for Franklin Pierce, it’s good enough for me.
Of course, the Judge was cool with it, and we got it done:
Afterwards, we sat down at the Appellant’s table to chat about Judicata and legal technology. For those of you who don’t know, Judge Kozinski is a pretty tech-savvy guy. After we discussed Judicata’s version of man-machine symbiosis, he dialed back the clock and dazzled us with stories about when he used to program in Fortran on IBM punch cards.
The night ended with dinner at a nearby restaurant. Naturally, the Judge and the whip-smart Ninth Circuit clerks that joined us were delightful company.
I’d like to thank Judge Kozinski and everybody at the Court who made our visit especially memorable yesterday!
I did a keynote interview last night at kbs+ ventures for their new book’s launch event. Since I talked a bit about CS183 and the Thiel Fellowship program, a few people came up to me afterwards and asked different versions of the same question: if I wanted to be an entrepreneur, why did I get several degrees from Stanford instead of dropping out?
My quick answer was that it’s important to avoid blanket statements about education and entrepreneurship. Certainly many successful entrepreneurs have name brand college degrees. But many don’t.
Last I looked, Wikipedia’s list of college dropout billionaires is 31 people and counting (and only one of them is a drug lord). I thought that was a shockingly high number, as most of us only know the most famous three or four. If we wanted to talk about dropout millionaires, there are so many that we’d probably need scientific notation.
One of the reasons for this is that the market doesn’t necessarily wait 4 years for you to get your BS or 6 or 7 years for your PhD. In 2003 and 2004, Mark Zuckerberg had a huge advantage in that he was working furiously toward something he sensed was important while his peers were still locked into school. Starting Facebook in 2007 would not have worked.
One key distinction is between businesses that require a lot of specialized domain knowledge and businesses that don’t. Often, this tracks the distinction between enterprise/B2B and consumer models. Bright, well-adjusted 18- or 19-year-olds can develop the kind of social insight that’s at the core of many great products, maybe even better than older folks can. If their engineering skills are adequate, they can build the vision and more or less take over the world. This isn’t to say this is easy, of course—only that it’s very possible.
Facebook was one example. Another may be Gumroad, a novel e-commerce company run by 20-year-old Sahil Lavingia. If you aren’t already familiar with it, Gumroad enables anyone to sell something online in a matter of seconds. If you want to sell an e-book, for example, you create a product listing and get a unique link that you can share throughout the web. If, as Sahil says, Gumroad “becomes a thing,” he will have succeeded in turning all of Facebook and Twitter into a global online marketplace, i.e. in building a billion dollar company.
Other businesses require a great deal of domain-specific knowledge, which often entails specialized education. For example, my company, Judicata, builds radically better legal search and analytics software for lawyers. This requires great engineers, but it also requires great lawyers who deeply understand how the law works. For better or worse—and I actually suspect for worse—one almost invariably needs to go to college and then law school to become a lawyer. At the very least, being in law school affords one a structured opportunity to learn how to think about the law.
For some ventures, getting a technical or professional education is unquestionably the right move. For others, college is absolutely the wrong move. More interesting than the drop out vs. not question, I think, is the set of questions that aims at unpacking what a college education really is. To really understand the nexus between education and entrepreneurship, we’d be better off starting there.
In most respects, U.S. Attorney Carmen Ortiz’s statement about the Aaron Swartz prosecution is unremarkable. It’s more or less the standard fare that one expects from government officials who unexpectedly find themselves on their heels.
The most striking thing about the statement is the writing itself, which is terrible. Ortiz begins:
As a parent and a sister, I can only imagine the pain felt by the family and friends of Aaron Swartz, and I want to extend my heartfelt sympathy to everyone who knew and loved this young man.
What is the first clause doing here? Presumably it is either intended to establish empathy or sympathy. Empathy seems odd because Ortiz extends “sympathy” two sentences later. But sympathy doesn’t require mentioning Ortiz’s own family, unless she means to syllogize: “I would be upset if one of my family members killed himself. Aaron killed himself. Therefore I imagine that Aaron’s family is upset.” Much better is to avoid the token contrivance and say something like:
I want to extend my heartfelt sympathy to everyone who knew and loved Aaron Swartz. All of us at the U.S. Attorney’s Office deeply regret that Aaron chose to take his own life.
I know that there is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life.
This isn’t that bad. It sort of feels like it’s missing a sentence at the end. The bigger problem is that “somehow led” is too snarky. Ortiz is basically saying that anyone who believes that Aaron’s suicide was related to his prosecution is an idiot. The problem is that most people do believe that these events are related, which seems quite reasonable absent evidence to the contrary. Ortiz is pushing back on causation where she should be pushing back elsewhere instead. The weak line is “We didn’t do anything that caused Aaron to kill himself.” The strong line is “We did everything right. It sucks that Aaron killed himself. Not our fault.”
Ortiz’s second paragraph begins as haphazardly as the first one ended:
I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case.
This sounds weak and defensive in the worst way. If you didn’t do anything wrong, why not take ownership and avoid the passive voice? She continues to wax Rumsfeldian:
The career prosecutors handling this matter took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.
At one level, she is defending her prosecutors. On another level, it seems like she is throwing them under the bus. Also, no one wants to hear how hard your job is when you mess up (or if you are perceived to have messed up).
Ortiz then spends the rest of the paragraph aimlessly listing off some facts that she hopes readers will find mitigating. Why she doesn’t use an unordered list is beyond me. (The federal government, after all, knows how to use bullet points.) Before we get there, though, consider whether something like the following would make a better second paragraph:
I have been involved with this case since its inception. I have reviewed the record at length over the past few days. My conclusion is clear: I am absolutely certain that our conduct was appropriate in bringing and handling this case. Prosecutors make odd scapegoats in situations such as these. Our job is to enforce valid laws fairly and effectively. In this case, that meant bringing charges against Aaron. We do not pass judgment on the wisdom of laws that Congress chooses to enact. And, unfortunately, we cannot prevent the small percentage of criminal defendants who elect to commit suicide from doing so.
Ortiz’s fact section is her worst writing of all. Consider the following excerpt:
That is why in the discussions with his counsel about a resolution of the case this office sought an appropriate sentence that matched the alleged conduct – a sentence that we would recommend to the judge of six months in a low security setting. While at the same time, his defense counsel would have been free to recommend a sentence of probation. Ultimately, any sentence imposed would have been up to the judge.
That is atrocious. I don’t think it needs any more explanation than that. If you disagree, you are wrong. If you think that this horror show is necessary legalese, you are wrong. This is not a real estate contract. It does not need to read this way. Whether it’s bad enough to do any damage is unclear, but it is certainly not persuasive writing. AUSAs are typically pretty good lawyers who write well. I seriously question whether Ortiz had any of her people read her statement before releasing it. (Another possibility, as @DanGoldin suggests, is that too many people worked on it. Either Ortiz has zero proofreaders or an army of them.)
In any case, here is how one might retool the facts section:
The statement ends with:
As federal prosecutors, our mission includes protecting the use of computers and the Internet by enforcing the law as fairly and responsibly as possible. We strive to do our best to fulfill this mission every day.
That’s not so bad. But could she have ended stronger?
While anger is understandable in the wake of tragedy, anger at prosecutors, at least in this case, is misplaced. If people believe that the law should be changed, certainly they should contact their representatives in Congress. In the meantime, as federal prosecutors, our mission is to enforce the law as fairly and responsibly as possible. That is what we did in this case, and we will continue to do just that.
I don’t mean to suggest that my edits make the statement appropriate. I did them in 20 minutes on the Caltrain this morning. What I do mean to suggest is that there is lots of room for improvement. Since this was surely a statement worth getting right, I can’t help but wonder what went wrong.
New Year’s resolutions don’t work. Discipline is hard. People yield to temptations. Resolving in abstractions—get fit, watch less TV, be a better person, etc.—is a terrible idea.
Changing specific habits, by contrast, can work. (Interestingly, evidence of habit or routine practice is usually admissible in courts to prove that a person has acted in conformity therewith.1 This is not true of character evidence and traits.2 There’s always a sense in which habit is more concrete than character.)
But even that is tricky. Most of us are aware of our shortcomings and flaws before we decide to change them. Where did they come from? Why did they persist for so long?
This is why I make plans instead of resolutions. My flaws are probably with me for good. I’m too argumentative. I’m horrible at staying in touch with old friends. There are plenty more. For the most part, though, I already behave like I want to. Being fit is important to me, so I’m fit. Eating clean is important to me, so I do. Work-family harmony is important to me, so I try to attain it. But I haven’t yet achieved much of what I want to achieve… not even close.
Whether one should publicly share his plans is an open question. Patri suggests this can be counterproductive. Others agree. Then again, Wiseman found that public accountability helps, which is the standard intuition. We’ll call it a wash. Since my bias is to share, here are some of my plans for 2013:
I hope everybody reading has a great year. Go and do awesome things!
I’m delighted to announce that my startup, Judicata, has raised $2 million from Peter Thiel, David Lee of SV Angel, Keith Rabois, and Box founders Aaron Levie and Dylan Smith.1 Our mission is clear: to build legal research and analytics products that dramatically advance what lawyers can do.
Legal technology is at something of a crossroads. On one hand, it is notoriously inefficient and outdated, and has been for quite some time. On the other hand—to use Marc Andreessen’s parlance—software is eating the world.2 We can imagine a few different futures unfolding. One would entail the continued stagnation of the status quo. Another would involve minor, halting changes that never quite deliver on their promises. A third would see truly innovative technology that empowers lawyers to argue better and do more than ever before.
The latter is clearly ideal. So why hasn’t it happened yet? Why hasn’t software eaten the law?
Our thesis is that it’s actually quite hard. Lots of people have tried. Some are still trying. But most are hacking at the branches. Incremental change is not without value. But software can’t actually improve legal decision making unless we aim higher. Harder, but more promising, is to strike at the root of the problem. The law is information. The future of legal technology involves organizing and understanding that information. All of it.
This is why Judicata is mapping the legal genome—i.e. using highly specialized case law parsing and algorithmically assisted human review to turn unstructured court opinions into structured data. We can leverage that data to build legal research and analytics tools that are an order of magnitude better than existing offerings. The Palantir model is a rough analogue. Palantir’s software can’t tell a CIA analyst who is a terrorist. But it can identify patterns and make sense of massive amounts of information to help the analyst make that call. Great legal technology will do the same—assist lawyers in exercising their skilled, human judgment.
We believe this is possible, and that we can do it. The fusion of legal domain expertise and engineering talent is key; our founding team of three (Adam, Itai and myself) consists of two engineers and two JDs. Chris and Itai built some of the most advanced features in Google Scholar’s legal index. Patrick worked with Adam at Adap.tv. David, Beth, Adam and I were Stanford c/o ’08 together; two of us became engineers, and two went the law route. This team understands not only how law works, but also how to extract, organize, and analyze the underlying information. We revel in this stuff. (Let us know if you do too.)
Justice Holmes once wrote that understanding law is an exercise in prediction: given a dispute, and given all that have come before it, what is the court likely to do? How can lawyering impact legal outcomes? In 1897, he took a guess about what was to come:
“For the rational study of the law the black-letter man may be the man of the present, but the man of the future is the man of statistics and the master of economics.”3
Substitute “computer science” for “economics,” and we aim to prove him right.
We’re thrilled to be working with this group of investors. Peter, David, and Keith—formerly lawyers before their careers in entrepreneurship and venture—deeply understand how technology can augment legal practice. Aaron and Dylan are captaining one of the Valley’s most successful enterprise software companies. The collective wisdom of this bunch is astounding. Their belief in our vision is, to say the least, inspiring. ↩
Here is an essay version of my notes from Peter Thiel’s recent guest lecture in Stanford Law’s Legal Technology course. As usual, this is not a verbatim transcript. Errors and omissions are my own. Credit for good stuff is Peter’s.
When thinking about the future of the computer age, we can think of many distant futures where computers do vastly more than humans can do. Whether there will eventually be some sort of superhuman-capable AI remains an open question. Generally speaking, people are probably too skeptical about advances in this area. There’s probably much more potential here than people assume.
It’s worth distinguishing thinking about the distant future—that is, what could happen in, say, 1,000 years—from thinking about the near future of the next 20 to 50 years. When talking about legal technology, it may be useful to talk first about the distant future, and then rewind to evaluate how our legal system is working and whether there are any changes on the horizon.
I. The Distant Future
The one thing that seems safe to say about the very distant future is that people are pretty limited in their thinking about it. There are all sorts of literary references, of course, ranging from 2001: A Space Odyssey to Futurama. But in truth, all the familiar sci-fi probably has much too narrow an intuition about what advanced AI would actually look like.
This follows directly from how we think about computers and people. We tend to think of all computers as more or less identical. Maybe some features are different, but the systems are mostly homogeneous. People, by contrast, are very different from one another. We look at the wide range of human characteristics—from empathy to cruelty, kindness to sociopathy—and perceive people to be quite diverse. Since people run our legal system, this heterogeneity translates into a wide range of outcomes in disputes. After all, if people are all different, it may matter a great deal who is the judge, jury, or prosecutor in your case. The converse of this super naive intuition is that, since all computers are the same, an automized legal system would be one in which you get the same answer in all sorts of different contexts.
This is probably backwards. Suppose you draw 3 concentric circles on a whiteboard: one dot, a ring around that dot, and a larger circle around that ring. The range of all possible humans best corresponds with the dot. The ring around the dot corresponds to all intelligent life forms; it’s a bigger range comprised of the superset of all humans, plus Martians, Alpha Centaurians, Andromedans, and so on. But the diversity of intelligent life is still constrained by evolution, chemistry, and biology. Computers aren’t. So the set of all intelligent machines would be the superset of all aliens. The range and diversity of possible computers is actually much bigger than the range of possible life forms under known rules.
What Hal will be like is thus a much harder question than knowing what would happen if Martians took control of the legal system.
The point is simply this: we have all sorts of these intuitions about computers and the future, and they are very incomplete at best. Implementation of all these diverse machines and AIs might produce better, worse, or totally incomprehensible systems. Certainly we hope for the former as we work toward building this technology. But the tremendous range these systems could occupy is always worth underscoring.
II. The Near Future
Let’s telescope this back to the narrower question of the near future. Forget about 1,000 years from now. Think instead what the world will look like 20 to 50 years from now. It’s conceivable, if not probable, that large parts of the legal system will be automated. Today we have automatic cameras that give speeding tickets if you drive too fast. Maybe in 20 years there will be a similarly automated determination of whether you’re paying your taxes or not. There are many interesting, unanswered questions about what these systems would be like. But our standard intuition is that it’s all pretty scary.
This bias is worth thinking really hard about. Why do we think that a more automated legal future is scary? Of course there may be problems with it. Those merit discussion. But the baseline fear of computers in the near term may actually tells us quite a bit about our current system.
A. Status Quo Bias
Let’s look at our current legal system de novo. Arguably, it’s actually quite scary itself. There are lots of crimes and laws on the books—so many, in fact, that it’s pretty obvious that the system simply wouldn’t work if everybody were actually held accountable for every technical violation. You can guess the thesis of Silverglate’s book Three Felonies A Day. Is that exaggerated? Maybe. But one suspects there’s a lot to it.
The drive for regulation and enforcement by inspection isn’t new or unique to America, of course. In 1945, the English playwright J.B. Priestley wrote a play called An Inspector Calls. The plot involves the mysterious death of a nanny who was working for an upper middle class family. The family insists it was just suicide, but an inspector investigates and finds that the family actually did all these bad things to drive the girl to suicide. The subtext is all of society is like this. The play opened in 1945 at the Bolshevik Theatre in Stalinist Russia. The last line was: “We must have more inspectors!” And the curtains closed to thunderous applause.
B. Fear of the Unknown
Despite firsthand knowledge of what bureaucracy can do, we tend to think that it is a computerized legal system that would be incredibly draconian and totalitarian. For some reason, there is a big fear of automatic implementation and it gets amplified as people extrapolate into the future.
The main pushback to this view is that it ignores the fact that the status quo is actually quite bad. Very often, justice isn’t done. Too often, things are largely arbitrary. Incredibly random events shape legal outcomes. Do people get caught? Given wide discretion, what do prosecutors decide to do? What goes on during jury selection? It seems inarguable that, to a large extent, random and uncertain processes determine guilt or liability. This version isn’t totalitarian, but it’s arbitrary all the same. We just tend not to notice because most of the time we get off the hook for stuff we do. So it sort of works.
C. Deviation from Certainty
But what is the nature of the randomness? That our legal system deviates from algorithmic determinism isn’t necessarily bad. The question is whether the deviation is subrational or superrational. Subrational deviation involves things that don’t make sense, but rather just happen for no reason at all. Maybe a cop is upset about something from earlier in the day and he takes it out on you. Or maybe the people on the jury don’t like how you look. People don’t like to focus on these subrational elements. Instead they prefer to talk as if all deviation were superrational: what’s arbitrary is not in fact arbitrary, but rather is perfect justice. Things are infinitely complex and nuanced. And our current system—but not predictable computers—appropriately factors all that in.
That narrative sounds good, but it probably isn’t true. Most deviation from predictability in our legal system is probably subrational deviation. In many contexts, this doesn’t matter all that much. Take speeding tickets, for example. Everyone gets caught occasionally, with roughly the same frequency. Maybe a system with better enforcement and lesser penalties would be slightly better, but one gets the sense that this isn’t such a big deal.
But there are more serious cases where the sub- vs. superrational nature of the deviation matters more. Drug laws are one example. This past election, Colorado voters just voted to legalize marijuana there. California has done something functionally similar by declaring that simple possession is not an enforcement priority. But that’s only at the state level; possession remains illegal and enforced under federal law. Violation of the federal statute can and does mean big jail time for people who get caught. But the flipside is that there aren’t many federal enforcers, and these states aren’t inclined to enforce the federal law themselves. So people wind up having to do a bunch of probabilistic math. Maybe a regime in which you have a 1 in 1,000 chance of going to jail for a term of 1,000 days works reasonably well. But arguably it’s quite arbitrary; getting caught can feel like getting hit with a lightening bolt. Much better would be to have 1,000 offenders each go to jail for a day.
III. A (More) Transparent Future
It may be that the usual intuition is precisely backwards. Computerizing the legal system could make it much less arbitrary while still avoiding totalitarianism. There is no reason to think that automization is inherently draconian.
Of course, automating systems has consequences. Perhaps the biggest impact that computer tech and the information revolution have had over last few decades has been increased transparency. More things today are brought to the surface than ever before in history. A fully transparent world is one where everyone gets arrested for the same crimes. As a purely descriptive matter, our trajectory certainly points in that direction. Normatively, there’s always the question of whether this trajectory is good or bad.
It’s hard to get a handle on the normative aspect. What does it mean to say that “transparency is good”? One might say that transparency is good because its opposite is criminality, which we know is bad. If people are illegally hiding money in Swiss bank accounts, maybe we should make all that transparent. But it’s just as easy to claim that opposite transparency is privacy, which we also tend to believe is good. Few would argue that the right to privacy is the same thing as the right to commit crimes in total secrecy.
One way to these questions is to first distinguish the descriptive and the normative and then hedge. Yes, the shift toward transparency has its problems. But it’s probably not reversible. Given that it’s happening, and given that it can be good or bad depending on how we adjust, we should probably focus on adjusting well. We’ll have to rethink these systems.
A. Transparency and Procedure
In some sense, Computers are inherently transparent. Almost invariably, codifying and automating things makes them more transparent. From the computer revolution perspective, transparency involves more than simply making people aware of more information. Things become more transparent in a deeper, structural sense if and when code determines how they must happen.
One considerable benefit of this kind of transparency is that it can bring to light the injustices of existing legal or quasi-legal systems. Consider the torture scandals of the last decade. This got a lot of attention when information about what kinds of abuse were going on was published. This, in turn, led to a lot of changes in process, with the end result being a rather creepy formalization under which you can sort of dunk prisoners in water… but don’t you dare shock them.
Why the drive toward transparency? One theory is that lower level people were getting pretty nervous. They understandably wanted the protection of clear guidelines to follow. They didn’t have those guidelines because the higher ups in the Bush administration didn’t really understand how the world was changing around them. So it all came to a head. In an increasingly transparent world, torture gets bureaucratized. And once you formalize and codify something, you can bring it to the surface and have a discussion about whatever injustice you may see.
If you’re skeptical, ask yourself which is safer: being a prisoner at Guantanamo or being a suspected cop killer in New York City. Authorities in the latter case are pretty careful not to formalize rules of procedure. It seems reasonable to assume that’s intentional.
B. Would Transparency Break The Law?
The overarching, more philosophical question is how well a more transparent legal system would work. Transparency makes some systems work better, but it can also make some systems worse.
So which kind of system is the legal system? Maybe it’s like the stock market, which automation generally makes more efficient. Instead of only being able to trade to an eighth of a share, you can now trade to the penny. Traders now have access to all sorts of metrics like bidder volume. Things have become less arbitrary, more precise, and more efficient. If the law is mostly rational, and just slightly off, it may be the case that you can tweak things and make it right with a little automation.
Other systems aren’t like this at all. Many things only work when they are done in the dark, when no one knows exactly what’s going on. The phenomenon of scapegoating is a good example. It only works when people aren’t aware of it. If you were to say “We have a serious problem in the community. No one is happy. We need psychosocial process whereby we can designate someone as a witch and then burn them in order to resolve all this tension,” the idea would be ruined. The whole thing only works if people remain ignorant about it.
The question can thus be reduced to this: is the legal system pretty just already, and perfectible like a market? Or is it more arbitrary and unjust, like a psychosocial phenomenon that breaks down when illuminated?
The standard view is the former, but the better view is the latter. Our legal system is probably more parts crazed psychosocial phenomenon. The naïve rationalistic view of transparency is the market view; small changes move things toward perfectibility. But transparency can be stronger and more destructive than that. Consider the tendency to want to become vegan if you watch a bunch of foie gras videos on YouTube. Afterwards, you’re not terribly concerned about small differences in production techniques or the particulars of the sourcing of the geese. Rather, you have seen the light, and have a big shift in perspective. Truly understanding our legal system probably has this same effect; once you throw more light on it, you’re able to fully appreciate just how bad things are underneath the surface.
C. Law and Order
Once you start to suspect that the status quo is quite bad, you can ask all sorts of interesting questions. Are judges and juries rational deliberating bodies? Are they weighing things in a careful, nuanced way? Or are they behaving irrationally, issuing judgments and verdicts that are more or less random? Are judges supernaturally smart people? The voice of the people? The voice of God? Exemplars of perfect justice? Or is the legal system really just a set of crazy processes?
A good rule of thumb in business is to never get entangled in the legal system in any way whatsoever. Invariably it’s an arbitrary and expensive distraction from what you’re actually trying to do. People underestimate the costs of engaging with plaintiff’s lawyers. It’s very easy to think: “Well, they’re just bringing a case. It will cost a little bit, but ultimately we will figure out the truth.” But that’s pretty idealized. If you’re dealing with a crazy arbitrary system and you never actually know what could happen to you, you end up negotiating with plaintiff’s lawyers just like the government negotiates with terrorists: not at all, except in every specific instance. When the machinery is too many parts random and insane, you always find a way to pay people off.
Looking forward, we can speculate about how things will turn out. The trend is toward automization, and things will probably look very different 20, 50, and 1000 years from now. We could end up with a much better or much worse system. But realizing that our baseline may not be as good as we tend to assume it is opens up new avenues for progress. For example, if uniformly enforcing current laws would land everyone in jail, and transparency is only increasing, we’ll pretty much have to become a more tolerant society. By placing the status quo in proper context, we will get better at adjusting to a changing world.
Questions from the Audience:
Question from the audience: Judge Posner recently opined in a blog post that humans don’t have free will. He argued that it is not objectionable to heavily tax wealthy people because, things being thoroughly deterministic, they made their fortunes through random chance and luck. If the free will point is true, there are also implications for criminal law, since there’s no point punishing people who are not morally culpable. How do you see technological advance interacting with the questions of free will, determinism, and predicting people’s behavior?
Peter Thiel: There are many different takes on this. For starters, it’s worth noting that any one big movement on this question might not shake things up too much. Maybe you don’t aim for retribution on people who aren’t morally culpable. But there are other arguments for jail even if you don’t believe in free will. Since there are several competing rationales for the criminal justice system, practically speaking it may not matter.
More abstractly, it seems clear that we are headed towards a more transparent system. But there are layers and layers of nuance on what that means and how that happens. There is no one day where some switch will be flipped and everything is illuminated. Theoretically, if you could flip that switch and determine all the precise causal connections between things, you would know how everything worked and could create that perfectly just system. But philosophically and neurobiologically, that is probably very far away. Much more likely is a rolling wave of transparency. More things are transparent today than in the past. But there’s a lot that is still hidden.
The order of operations—that is, the specific path the transparency wave takes—matters a great deal too. Take something like WikiLeaks. The basic idea was to make transparent the doings of various government agencies. One of the critical political/legal/social questions there was what became transparent first: all the bad things the US government was doing? Or the fact that Assange was assaulting various Swedish groupies? The sequence in which things become transparent is very important. Some version of this probably applies in all cases.
I agree with Posner that transparency often has a corrosive undermining effect. Existing institutions aren’t geared for it. I do suspect that people’s behavior still responds to incentives in some ways, even if there is no free will in the philosophical, counterfactual sense of the word. But I am sympathetic to part of the free will argument because, if you say that free will exists, you’re essentially saying two things:
But if you combine those two claims, the resulting world seems strange and implausible.
Practically, free will arguments are worth scrutiny. Ask yourself: in criminal law, which side makes arguments about free will? Invariably the answer is the prosecution. The line goes: “You killed this person. It was your decision to do that. You’re not even deformed; that’s an extrinsic factor. Rather, you are intrinsically evil.” Anyone who is skeptical about excessive prosecution should probably be skeptical about free will in law. But it makes sense to be less skeptical about it as a philosophical matter.
Question from the audience: There’s the AI joke that says that cars aren’t really autonomous until you order them to go to work and they go to the beach instead. What do you think about the future of encoding free will into computers? Can we imagine mens rea in a machine.
Peter Thiel: In practice it’s most useful to think of questions about free will as political questions. People bring up free will when they want to blame other people.
Theoretically, the nexus between free will and AI does raise interesting questions. If you turn the computer off, are you killing it? There are many different versions of this. My intuition is that we’re really bad at answering these questions. Common sense doesn’t really work; it’s likely to be so off that it’s just not helpful at all. This stuff may just be too weird to figure out in advance. Maybe the biggest lesson is that we should just be skeptical of our intuitions. So I’ll be skeptical of my intuitions, and will not answer your question.
Besides, the easier things are the near term things. Short of full-blown AI, we can automate certain processes and reap large efficiency gains while also avoiding qualms about about turning the computers off at night. We should not conflate super intelligent computers with very good, but still dumber-than-human computers that do things for us. In the near term, we should welcome transparency and automation in our political and legal structures because this will force us to confront present injustices. The fear that all this leads to a Kafkaesque future isn’t illegitimate, but it’s still very speculative.
Question from the audience: How could you ever design a system that responds unpredictably? A cat or gorilla responds to stimulus unpredictably. But computers respond predictably.
Peter Thiel: There are a lot of ways in which computers already respond unpredictably. Microsoft Windows crashes unpredictably. Chess computers make unpredictable moves. These systems are deterministic, of course, in that they’ve been programed. But often it’s not at all clear to their users what they’ll actually do. What move will Deep Blue make next? Practically speaking, we don know. What we do know is that the computer will play chess.
It’s harder if you have a computer that is smarter than humans. This becomes almost a theological question. If God always answers your prayers when you pray, maybe it’s not really God; maybe it’s a super intelligent computer that is working in a completely determinate way.
Question from the audience: One problem with transparency is that it can delegitimize otherwise legitimate authority. For instance, anyone can blog and post inaccurate or harmful information, and the noise drowns out more legitimate information. Couldn’t more transparency in the legal system actually be harmful because it would empower incorrect or illegitimate arguments?
Peter Thiel: This question gets at why it’s important to have an incremental process towards full transparency instead a radical shift. There are certainly various countercurrents that could emerge.
But generally speaking the information age has tended to result in more homogenization of thought, not less. It just doesn’t seem true that transparency has enabled more isolated communities of belief to disingenuously tap into various shreds of data and thereby maintain edifice where they couldn’t have before. It’s probably harder to start a cult today than it was in the ‘60s or ‘70s. Even though you have more data to piece together, your theory would get undermined and attacked from all angles. People wouldn’t buy it. So the big risk isn’t that excessively weird beliefs are sustained, but rather that we end up with one homogenized belief structure under which people mistakenly assume that all truth is known and there’s nothing left to figure out. This is hard to prove, of course. It’s perhaps the classic Internet debate. But generally the Internet probably makes people more alike than different. Think about the self-censorship angle. If everything you say is permanently archived forever, you’re likely to be more careful with your speech. My biggest worry about transparency is that it narrows the range of acceptable debate.
Question from the audience: How important is empathy in law? Human Rights Watch just released a report about fully autonomous robot military drones that actually make all the targeting decisions that humans are currently making. This seems like a pretty ominous development.
Peter Thiel: Briefly recapping my thesis here should help us approach this question. My general bias is pro-computer, pro-AI, and pro-transparency, with reservations here and there. In the main, our legal system deviates from a rational system not in a superrational way—i.e. empathy leading to otherwise unobtainable truth—but rather in subrational way, where people are angry and act unjustly.
If you could have a system with zero empathy but also zero hate, that would probably be a large improvement over the status quo.
Regarding your example of automated killing in war contexts—that’s certainly very jarring. One can see a lot of problems with it. But the fundamental problem is not the machines are killing people without feeling bad about it. The problem is simply that they’re killing people.
Question from the audience: But Human Rights Watch says that the more automated machines will kill more people, because human soldiers and operates sometimes hold back because of emotion and empathy.
Peter Thiel: This sort of opens up a counterfactual debate. Theory would seem to go the other way: more precision in war, such that you kill only actual combatants, results in fewer deaths because there is less collateral damage. Think of the carnage on the front in World War I. Suppose you have 1,000 people getting killed each day, and this continues for 3-4 years straight. Shouldn’t somebody have figured out that this was a bad idea? Why didn’t the people running things put an end to this? These questions suggest that our normal intuitions about war are completely wrong. If you heard that a child was being killed in an adjacent room, your instinct would be to run over and try to stop it. But in war, when many thousands are being killed… well, one sort of wonders how this is even possible. Clearly the normal intuitions don’t work.
One theory is that the politicians and generals who are running things are actually sociopaths who don’t care about the human costs. As we understand more neurobiology, it may come to light that we have a political system in which the people who want and manage to get power are, in fact, sociopaths. You can also get here with a simple syllogism: There’s not much empathy in war. That’s strange because most people have empathy. So it’s very possible that the people making war do not.
So, while it’s obvious that drones killing people in war is very disturbing, it may just be the war that is disturbing, and our intuitions are throwing us off.
Question from the audience: What is your take on building machines that work just like the human brain?
Peter Thiel: If you could model the human brain perfectly, you can probably build a machine version of it. There are all sorts of questions about whether this is possible.
The alternative path, especially in the short term, is smart but not AI-smart computers, like chess computers. We didn’t model the human brain to create these systems. They crunch moves. They play differently and better than humans. But they use the same processes. So most AI that we’ll see, at least first, is likely to be soft AI that’s decidedly non-human.
Question from the audience: But chess computers aren’t even soft AI, right? They are all programmed. If we could just have enough time to crunch the moves and look at the code, we’d know what/s going on, right? So their moves are perfectly predictable.
Peter Thiel: Theoretically, chess computers are predictable. In practice, they aren’t. Arguably it’s the same with humans. We’re all made of atoms. Per quantum mechanics and physics, all our behavior is theoretically predictable. That doesn’t mean you could ever really do it.
Comment from the audience: There’s the anecdote of Kasparov resigning when Deep Blue made a bizarre move that he fatalistically interpreted as a sign that the computer had worked dozens of moves ahead. In reality the move was caused by a bug.
Peter Thiel: Well… I know Kasparov pretty well. There are a lot of things that he’d say happened there…
Question from the audience: I’m concerned about increased transparency not leaving room for tolerable behavior that’s not illegal. What’s your take on that?
Peter Thiel: That we are generally heading toward more transparency on a somewhat unpredictable path is a descriptive claim, not a normative one. This probably can’t be reversed; it’s hard to stop the arc of history. So we have to manage as best we can.
Certain things become harder to do in a more transparent world. Government, for example, might generally work best behind closed doors. Consider the fiscal cliff negotiations. If you said that they had to take place in front of C-SPAN cameras, things might work less well. Of course, it’s possible that they’d work better. But the baseline question is how good or bad the current system is. My view is that it’s actually quite bad, which is why greater transparency is more likely to be good for it.
I spoke with high-ranking official fairly recently about how Facebook is making things more transparent. This person believed that government only works when it’s secret—a “conspiracy against the people, for the people”sort of narrative. His very sincerely held view was that our government essentially stopped working during the Nixon administration, and we haven’t had a functioning government in this country for 40 years. No one can have a strategy. No one can write notes. Everything is recorded and everything becomes a part of history. We can sympathize with this, in that it’s probably very frustrating for officials who are trying to govern. But normatively, perhaps it’s a good thing if we no longer have a functioning government. All it ever really did well was kill people.
If you believe the stories that most people tell—the government is doing public good, and there’s a sense of superhuman rationality to it—transparency will shatter your view. But if you think that our system is incredibly broken and dysfunctional in many ways, transparency forces discussion and retooling. It affords us a chance to end up with a much more tolerant, if very different, world.
Question from the audience: Can you explain what bringing more transparency to government or the legal system would look like? How, specifically, does automating legal system lead to transparency?
Peter Thiel: Transparency can mean lots of things. We must be careful how we use the term. But take the simple example of people taking cell phone pictures of cops arresting people. That would make police-civilian interactions more transparent, in the thinnest sense. Maybe you find out that there are shockingly few procedural violations and that police are really well behaved. If so, this will increase confidence and make a good system even better. Of course, the reality may be that this transparency will expose the violations and arbitrariness in a bad system.
Capital punishment is another example. DNA testing can be seen as adding another layer of transparency to the system. It turns out that something like 20% of people accused of committing a capital crime are wrongly accused. That figure seems extraordinarily high; you’d think that with capital crimes, investigations would be much more serious and thorough and consequently there would be a very low rate of nabbing the wrong person. Today we’re increasingly skeptical of the justice of capital punishment, and for good reason. If the DNA tests had shown that we’ve never ever made an ID mistake in a capital case, we’d probably think very differently about our system.
The general insight is that as you codify things, you tend to bring to the surface what’s actually going on. One of the virtues of a more automated system is that it’s easier to describe accurately. You can actually understand how it works. At least in theory, you bring injustice to light. In practice, you’d then have to change the injustice. And you can’t do that if you don’t know about it.
Question from the audience: Doesn’t transparency to whom matter more than just transparency? Transparency to the programmer re witch-hunting doesn’t expose the existence of witch-hunting to society, right? Should government software be open sourced?
Peter Thiel: I’ll push back on that question a little bit. Just because you have an algorithm doesn’t mean people will always know what it will do—this is the chess computer example again. It’s very possible that people wouldn’t understand some things even with transparency. We have transparency on the U.S. budget, but no one in Congress can actually read or understand it all.
It’s a big mistake to think that one system can be completely transparent to everybody. It’s better to think in terms of many hidden layers that only gradually get uncovered.
Question from the audience: Since there are different countries, there are obviously multiple legal systems that interact, not just one legal system. Is it problematic that we won’t see the same transparency in some systems that we will in others?
Peter Thiel: Again, the push back is that transparency isn’t a unitary concept. The sequencing path is really important. Does the government get more transparency into the people? The people into the government? Government into itself, and the machine just works more efficiently? Depending on just how you sequence it, you can end up with radically different versions.
Look at Twitter and Facebook as they related to the Arab Spring. Which way do these technologies cut in terms of transparency? In 2009, the Iranian government hacked Twitter and used it to identify and locate dissidents. But in Tunisia and Egypt, the numerous protest posts and tweets helped people realize that they weren’t the only ones who were unhappy. The exact same software plays out in extremely different ways depending on the sequencing.
Question from the audience: Is there a point in time where we just shift from current computers to future computers? Or does technological advance follow a gradual spectrum?
Peter Thiel: Maybe there’s a categorical difference at some point. Or maybe it’s just quantitative. It’s conceivable that as some point things are just really, really different. The 20-year story about greater transparency is one where you can make reasonable predictions as to what computers will likely do and what they’re likely to automate, even though the computers themselves will be a little different. But 1,000 years out is much more opaque. Will the computers be just or unjust? We have no good intuition about that. Maybe they’ll be more like God, or we’ll be dealing with something beyond good and evil.
Question from the audience: Traffic cameras are egalitarian. But cops might be racist. Do you think we run the risk of someday having racist or malicious computers?
Peter Thiel: In practice, we can still generally understand computers somewhat better than we can understand people. In the near term at least, more computer automation would produce systems that are more predictable and less arbitrary. There would be less empathy but also less hate.
In the longer term, of course, it could be just the opposite. There may be real problems there. But key to understand is that we’re experiencing an irreversible shift toward greater transparency. This is true whether your time horizon is long-term, where things are mysterious and opaque, or short-term, where things become automized and predictable. Naturally, you have to get to the short-term first. So we should first realize the gains there, and we can figure out any long-term problems later.