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A lawyer scenting blood

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Reading Unwired by Gaia Bernstein for New Statesman, 15 May 2023

In 2005, the journal Obesity Research published a study that, had we but known it, told us everything we needed to know about our coming addiction to digital devices.

The paper, “Bottomless Bowls: Why Visual Cues of Portion Size May Influence Intake” was about soup. Researchers led by Brian Wansink of Cornell University invited volunteers to lunch. One group ate as much soup as they wanted from regular bowls. The other ate from bowls that were bolted to the table and refilled automatically from below. Deprived of the “stopping signal” of an empty bowl, this latter group ate 73 per cent more than the others — and had no idea that they had over-eaten.

It’s a tale that must haunt the dreams of Asa Raskin, the man who invented, then publically regretted, “infinite scroll”. That’s the way mobile phone apps (from Facebook to Instagram, Twitter to Snapchat) provide endless lists of fresh content to the user, regardless of how much content has already been consumed.

Gaia Bernstein, a law professor at Seton Hall, includes infinite scroll in her book’s catalogue of addicting smart-device features. But this is as much about what these devices don’t do. For instance in his 2022 book Lost Focus Johann Hari wonders why Facebook never tells you which of your friends are nearby and up for a coffee. Well, the answer’s obvious enough: because lonely people, self-medicating with increasing quantities of social media, are Facebook’s way of making money.

What do we mean when we say that our mobile phones and tablets and other smart devices are addicting?

The idea of behavioural addiction was enshrined in DSM-5, the manual of mental disorders issued by the American Psychiatric Association, in 2015. DSM-5 is a bloated beast, and yet its flaky-sounding “Behavioral Addictions” — that, on the face of it, could make a mental disorder of everything we like to do — have proved remarkably robust, as medicine reveals how addictions, compulsions and enthusiasms share the same neurological pathways. You can addict humans (and not just humans) to pretty much anything. All you need to do is weaponise the environment.

And the environment, according to Bernstein’s spare, functional and frightening account, is most certainly weaponised. Teenagers, says Bernsteins, spend barely a third of the time partying that they used to in the 1980s, and the number of teens who get together with their friends has halved between 2000 and 2015. If ever there was a time to market a service to lonely people by making them more lonely, it’s now.

For those of us who want to sue GAMA (Google, Amazon, Meta, Apple) for our children’s lost childhood, galloping anxiety, poor impulse control, obesity, insomnia and raised suicide risk, the challenge is to demonstrate that it’s screentime that’s done all this damage to how they feel, and how they behave. And that, in an era of helicopter-parenting, is hard to do. danah boyd’s 2014 book It’s Complicated shows how difficult it’s going to be to separate the harms inflicted by little Johnny’s iPhone from all the benefits little Johnny enjoys. To hear boyd tell it, teenagers “obsessed” with social media are simply trying to recreate, for themselves and each other, a social space denied them by anxious parents, hostile authorities, and a mass media bent on exaggerating every conceivable out-of-doors danger.

The Covid pandemic has only exacerbated the stay-at-home, see-no-one trend among young people. Children’s average time online doubled from three to six hours during lockdown. It use to be that four per cent of children spent more than eight hours a day in front of a smart screen. Now over a quarter of them do.

Nor have we merely inherited this dismal state of affairs; we’ve positively encouraged it, stuffing our schools with technological geegaws in the fond and (as it turns out) wildly naive belief that I.T. will improve and equalise classroom performance. (It doesn’t, which this is why Silicon Valley higher-ups typically send their children to Waldorf schools, which use chalk, right up until the eighth grade.)

Bernstein, who regularly peppers an otherwise quite dry account with some eye-popping personal testimony, recalls meeting one mum whose son was set to studying history through a Roblox game mode called Assassin’s Creed Odyssey (set in ancient Greece). “Since then, whenever she asks him to get off Roblox, he insists it is homework.”

Bernstein believes there’s more to all this than a series of unfortunate events. She thinks the makers of smart devices knew exactly what they were doing, as surely as the tobacco companies knew that the cigarettes they manufactured caused cancer.

Bernstein reckons we’re at a legal tipping point: this is her playbook for making GAMA pay for addicting us to glass.

Here’s what we already know about how companies respond to being caught out in massive wrong-doing.

First, they ignore the problem. (In 2018 an internal Facebook presentation warned: “Our algorithm exploits the human brain’s attraction to divisiveness… If left unchecked [it would feed users] more and more divisive content to gain user attention & increase time on the platform.” Mark Zuckerberg responded by asking his people “not to bring something like that to him again”.)

Then they deny there’s a problem. Then they go to war with the science, refuting critical studies and producing their own. Then, they fend off public criticism — and place responsibility on the consumer — by offering targeted solutions. (At least the filter tips added to cigarettes were easy to use. Most “parental controls” on smart devices are so cumbersome and inaccessible as to be unuseable.) Finally, they offer to create a system of self-regulation — by which time, Bernstein reckons, you’ve won, or you will have won, so long as you have proven that the people you’re going after intended, all along, to addict their customers.

You might, naively, imagine that this matter rests upon the science. It doesn’t, and Bernstein’s account of the screentime science wars is quite weak — a shallow confection built largely of single studies.

The scientific evidence is stronger than Bernstein makes it sound, but there’s still a problem: it’ll take a generation to consolidate. There are other, better ways to get at the truth in a timely manner; for instance, statistics, which will tell you that we have the largest ever recorded epidemic of teenage mental health problems, whose rising curves correlate with terrifying neatness with the launch of various social media platforms.

Bernstein is optimistic: “Justifying legal interventions,” she says, “is easier when the goal is to correct a loss of autonomy”, and this after all, is the main charge she’s laying at GAMA’s door: that these companies have created devices that rob us of our will, leaving us ever more civically and psychologically inept, the more we’re glued to their products.

Even better (at least from the point of view of a lawyer scenting blood), we’re talking about children. “Minors are the Achilles heel,” Bernstein announces repeatedly, and with something like glee. Remember how the image of children breathing in their parents’ second-hand smoke broke big tobacco? Well, just extend the analogy: here we have a playground full of kids taking free drags of Capstans and Players No. 6.

Unwired is not, and does not aspire to be, a comprehensive account of the screen-addiction phenomenon. It exists to be used: an agenda for social change through legal action. It is a knife, not a brush. But it’ll be of much more than academic value to those of us whose parenting years were overshadowed by feelings of guilt, frustration and anxiety, as we fought our hopeless battles, and lost our children to TikTok and Fortnite.

Free the sea

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Reading Chris Armstrong’s A Blue New Deal for New Scientist, 16 February 2022

Chris Armstrong, a political theorist at the University of Southampton, believes that the institutions and laws that govern our oceans are too fragmented, too weak and too amenable to vested interests to address the inequalities that exist between developed and developing nations.

Nor, he says, do they protect the marine environment from destruction, and this at a time when there’s been a 30 per cent increase in ocean acidity (since 1900), when the global fishing effort has grown ninefold (between 1970 and 2008), and the globe’s pursuit of oil, gas and minerals is increasingly being directed off-shore.

Ocean governance has been shaped by two contrary impulses: the idea of the freedom of the high seas, given shape in Hugo Grotius’s The Free Sea of 1609; and the idea — rather more familiar to landlubbers — of enclosure, by which a coastal state is entitled to exclusive control and enjoyment of its immediate marine environment.

Grotius’s vision of oceanic free-for-all allows anyone with the wherewithal to exploit an ocean resource as much and as often as they desire. Armstrong allows that this was not entirely unreasonable, given the limited technology available at the time to even the wealthiest nations. Clearly, though, it needs reform for the 21st century, given only a handful of rich nations have access to the expensive technologies involved in sea-bed mining and mineral extraction.

Enclosure is perhaps the more recalcitrant tradition. The idea behind “territorial waters” is ancient, but Armstrong sensibly explains it by reference to the 1968 article by the ecologist Garrett Hardin, in which he claimed that “Freedom in a commons brings ruin to all”.

The trouble is, this isn’t true. The historical record is full of examples of resources held in common, and governed equitably for hundreds of years. The much vaunted “tragedy of the commons” is a piece of rhetoric, not a proven truth. And as Armstrong rightly points out, “the real tragedy for individual ‘commoners’ was enclosure itself, which saw them being evicted from the land by wealthy landowners.”

In 1994, a new Convention on the Law of the Sea established Exclusive Economic Zones extending for 200 nautical miles from nearly every shore. Within these zones, resources are subject to the jurisdiction of the coastal state. By this myopic reasoning, landlocked countries were excluded from a share of the spoils of the sea. (This matters, as access to the sea is essential for economic health. Armstrong points out that 9 of the world’s 12 poorest countries are landlocked). It did nothing to prevent richer nations from licensing, on predatory terms, rights over the EEZs of countries too poor to exploit their own territory. And it gave every state-owned atoll, rock, and island an exclusive patch of sea to exploit, extending 200 miles in every direction. And which states own these rocks? Former colonial powers, of course. Thanks to the 1994 convention, the United States, the United Kingdom, France, Russia and Australia now command the resources of more than 45 million square kilometres of ocean.

What can be done?

In 1959 a treaty established Antarctica as a place of peace and international cooperation — a commons in other words. Eight years later, the Outer Space Treaty of 1967 did the same for the worlds beyond our own. So it is not beyond our legal capacities, Armstrong argues, to govern our oceans along principles of common management, benefit sharing, and even technology transfer between rich and poor nations.

Where Armstrong comes unstuck is in his ideas for enforcement. It’s all very well to dream up a “World Ocean Authority” whose deliberations no state would have the power to veto or depart from. But what omnipotent and omniscient power will drive all this selfless sharing, I wonder? Not, I would bet, the destitute seamen of the Gulf of Thailand; nor the blue whales and other non-human stakeholders of our increasingly stressed oceans.

Prudery isn’t justice

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Reading Objection: Disgust, morality, and the law by Debra Lieberman and Carlton Patrick for New Scientist, 15 September 2018

Ww want the law to be fair and objective. We also want laws that work in the real world, protecting and reassuring us, and maintaining our social and cultural values.

The moral dilemma is that we can’t have both. This may be because humans are hopelessly irrational and need a rational legal system to keep them in check. But it may also be that rationality has limits; trying to sit in judgement over everything is as cruel and farcical as gathering cats in a sack.

This dilemma is down to disgust, say Debra Lieberman, a psychologist at the University of Miami, and Carlton Patrick, a legal scholar at the University of Central Florida. In Objection, they join forces to consider why we find some acts disgusting without being reprehensible (like nose-picking), while others seem reprehensible without being disgusting (like drunk driving).

Disgust is such a powerful intuitive guide that it has informed our morality and hence our legal system. But it maps badly over a jurisprudence built on notions of harm and culpability.

Worse, terms of disgust are frequently wielded against people we intend to marginalise, making disgust a dangerously fissile element in our moral armoury.

Can science help us manage it? The prognosis is not good. If you were to ask a cultural anthropologist, a psychologist, a neuroscientist, a behavioural economist and a sociologist to explain disgust, you would receive different, often mutually contradictory, opinions.

The authors make their own job much more difficult, however, by endorsing a surreally naive model of the mind – one in which “both ’emotion’ and ‘cognition’ require circuitry” and it is possible to increase a child’s devotion to family by somehow manipulating this “circuitry”.

From here, the reader is ushered into the lollipop van of evolutionary psychology, where “disgust is best understood as a type of software program instantiated in our neural hardware”, which “evolved originally to guide our ancestors when making decisions about what to eat”.

The idea that disgust is to some degree taught and learned, conditioned by culture, class and contingency, is not something easily explored using the authors’ over-rigid model of the mind. Whenever they lay this model aside, however, they handle ambiguity well.

Their review of the literature on disgust is cogent and fair. They point out that although the decriminalisation of homosexuality and gay marriage argues persuasively for legal rationalism, there are other acts – like the violation of corpses – that we condemn without a strictly rational basis (the corpse isn’t complaining). This plays to the views of bioethicist Leon Kass, who calls disgust “the only voice left that speaks up to defend the central core of our humanity”.

Objection explores an ethical territory that sends legal purists sprawling. The authors emerge from this interzone battered, but essentially unbowed.