To Facebook, Or Not To Facebook, That Is The Question

I like to say the following to folks after one of my all-too-frequent displays of bad temper: “I’m sorry. I’m in AA. That outburst was totally in character. I am trying to recover.”

Generally folks pause for just a moment, reassessing me, and taking in the news that I am a recovering alcoholic.

Before they get too comfortable with that reassessment, I spring the punchline on them.

”I am not referring to Alcoholics Anonymous, mind you.” I pause to make sure I’ve got their full attention. “I am referring, of course, to Assoholics Anonymous.”

Folks chuckle, struggling to decide whether to forgive me or not.

I was reminded of this set piece this holiday season while reading one of my favorite Christmas gifts: Ten Arguments for Deleting Your Social Media Accounts Right Now by Jaron Lanier. The giver of this gift has long had misgivings about my participation on social media, namely Facebook. I decided to read the book to see just what Lanier had to say.

I was expecting something light and breezy – a wry effort at humorous self-help. What I got was a slap in the face.

Lanier has been involved in virtual reality research and digital wizardry for 30 years. He’s written perceptively about how the digital world is transforming the everyday world we all inhabit in previous books, Who Owns the Future?, You Are Not A Gadget, and, in 2017, Dawn of New Everything.

His thesis? Social media is bad for civilization.

How’s that?

It’s all in the algorithms.

Too abstract? OK. Blame the “existential mafia” – Lanier’s term, not mine – known as Facebook.

An algorithm is simply an equation, a formula used to relate things in patterns of use for one thing or another. In an era of machine learning supported by enormous computing power, algorithms have the capacity to engage in seemingly infinite and discrete calculations. What social media focuses on are users and what users pay attention to. Each click of your mouse is monitored, so is the time you spend viewing something, what you “like,” and so forth. A profile is created for each user.

Your digital profile, or footprint, is then correlated with those of others. Patterns emerge. If those who “like” cat photos also “like” articles about red wine and also “like” stories about child immigrants, guess what? You get grouped into a class of people who will be fed news stories corresponding to your profile.

Harmless, you say? Maybe. But it does tend to create separate information silos. You and your spouse may spend the evening online reading news selected for you by an algorithm. But the news may be entirely different not just in terms of content, but also in terms of ideological slant. That undermines a sense of community.

Bad as that may be, things look even worse when you realize the free social media you are using is generating data about you that is bundled and sold to advertisers and third parties by the likes of Facebook. Who buys the data? Folks who want to manipulate you. Did Russia use social media to influence how people voted? Most likely. Where’d they get the data? You gave it up for free to Facebook and others, and it was Facebook and others who profited from what you gave them.

Lanier: “We’re being tracked and measured constantly, and receiving engineered feedback all the time. We’re being hypnotized little by little by technicians we can’t see, for purposes we don’t know. We’re all lab animals now.”

What were we thinking?

We weren’t thinking; we were reacting, like Pavlovian rats in a digital cage.

Social media is about trying to belong. The currency of belonging in this digital universe is attention. Hence the concern about social metrics – are people reading you, responding to you, paying attention to you? It’s easy to get attention being nasty, or, to put it in Lanier’s terms, by being an “asshole.”

We become tribes and notice one another by congregating around things we don’t like. When we do that, we yield data for the algorithms directing our digital lives. Those who purchase that data learn our hot buttons. They buy the right to learn these so that they can press them. Are we divided on matters or race and/or immigration? Why wouldn’t Russia, or anyone else who can afford the price, buy this data and use it to manipulate our elections?

If you are skeptical about the thesis look no further than CNN, MSNBC and FOX, three ideological outposts each striving to appeal to their viewers by a non-stop 24-hour a day frenzy to fill the day with facts and opinion too often predictably revolving around fixed points. (I’ve largely given up on all three, relying on Bloomberg News or the BBC when I need to listen to something.)

What convinced me that Lanier was right was his discussion of the asshole factor on social media. Truth is, he nailed me. I enjoy being provocative for the sake of provocation. I like to drop a bomb and then watch it explode in the comments section. Why? It’s more than blood sport. I suppose I like the attention.

Lanier again: “If, when you participate in online platforms, you notice a nasty thing inside yourself, ... a yearning to lash out, to swat someone down, then leave that platform. Simple.”

Mea culpa, mea maxima culpa.

But still I persist.

The coup de grace came in an unexpected form. Friends informed me of Facebook’s new algorithmic sensors. The machine now deletes things Facebook doesn’t like. You can appeal, but the results of the appeal come quickly; it yields a sense that you are giving away data about yourself, sacrificing civility, and then being told how to behave during your digital rape.

I’m doing all this to make Mark Zuckerberg rich? Why?

Lanier counsels leaving social media for the sake civility, culture, truth and self-respect. He makes a good argument, and I am on the cusp of doing so.

Read Lanier’s book for yourself. I find him convincing and credible. He’s no Luddite. The digital world is here to stay. But as consumers we should reclaim the right to own our future. Why give it away to machines making strangers rich?

Facebook has me rethinking my commitment to AA. What about you?


Three Years Later, Yale Expels Student Found "Not Guilty"

It did not take a New Haven jury long in March of 2017 to acquit Saifullah Khan of the raping a classmate at Yale University one Halloween night. His accuser took the stand, told her story to the jury, was cross-examined and spent the better part of three days on the witness stand.

“Not guilty,” the jury said. In interviews with the press thereafter, jurors made it sound as though this was not a close case. Khan’s accuser wasn’t credible. Period.

That didn’t stop Yale from expelling Mr. Khan over the incident. Yale notified Mr. Khan in a brief letter emailed this afternoon (January 2, 2019) that the university sides with his accuser.

Just how did this happen?

One answer might me that different fact-finders applied different standards of proof. In the criminal case, jurors were asked to determine whether the state could prove Mr. Khan took advantage of drunken classmate in October 2015. In a civil case, a lesser standard of proof was applicable. Fact-finders could reach different conclusions applying different standards. That’s a logical possibility.

But there is another, more compelling possibility – Mr. Khan was afforded due process at his criminal trial, but deprived a meaningful right to defend himself at the university’s tribunal.

I tried both the criminal case and was a silent witness to the university fact-finding process. There’s no doubt in my mind that the process Yale used to engage in its fact-finding was fatally flawed.

Mr. Khan’s accuser was not required to attend the Yale hearing -- the "fact finders" never met her. She used Skype to give her testimony at Yale. In the criminal trial, she sat in open court and testified. In New Haven she dialed it in. Mr. Khan wasn’t even permitted to be in the same room when his accuser gave her statement. He was shuffled to a side room and offered a chance to listen to what she had to say over an intercom.

Mr. Khan’s accuser was cross-examined at the criminal trial. Mr. Khan confronted her and challenged her credibility about her state of intoxication the night they made love. When she testified she stumbled as she walked across campus, be confronted her with a video that showed her smiling as the two walked arm-in-arm like young lovers on a stroll. She stammered out an unconvincing explanation for the Shakespearean sonnet she had sent him days before. She couldn’t explain why she flirted with him, or why she lied to others about what happened that night.

All that was lost on the five-member panel to hear the case under cloak of secrecy on the Yale campus. Mr. Khan could not cross-examine his accuser. She was queen for the day.

Mr. Khan was deprived of the right to counsel at Yale’s hearing. He could bring an adviser, but the adviser could not speak. I winced as I listed to panel members ask compound questions, assume facts not in evidence, and engage in the sort of fact-finding blunders lawyers and judges are trained to avoid.

You’ll have to take my word for this, of course. When Mr. Khan asked for permission to make a recording of the hearing, his request was denied. No record was taken of the proceedings. The secret proceeding lacked transparency, and, therefore accountability. It was painful watching accomplished scholars engage in star-chamber secrecy. They knew not what they were doing.

No lawyer, no cross-examination, no right to confront his accuser, no right even to make sure his accuser returned to make her case in person, no right to make a record of the proceedings. Yale’s fact-finders behaved as though the pursuit of justice were the prerogative of a secret society.

Mr. Khan will take an internal appeal at Yale, and, should that fail, he will turn to the federal courts for relief. Yale’s appeals process is limited. Mr. Khan can’t challenge the finding; he can only challenge procedural faults. He’ll likely lose the appeal and have to turn to the federal courts for relief. The good news is that the courts aren’t impressed with Title IX administrative proceedings.

In truth, Mr. Khan never had a chance at Yale once his accuser decided to make her claim. Indeed, after his acquittal in March, some 75,000 people signed a petition urging Yale to ban the “rapist” from campus. He was permitted to resume classes this Fall, but was treated like a pariah by classmates.

In November, the university pounced. A non-student claimed Mr. Khan abused him in a sadomasochistic threesome in Washington, D.C. The university suspended Mr. Khan. We were set to have a hearing on that claim next week. The Washington, D.C. police had closed its file, concluding no crime was committed. Mr. Khan submitted to a forensic interview, which concluded he was no threat to himself or others. The university did not intend to call his accuser in Washington, D.C., concluding the young man lacked credibility.

We’ve called next week’s hearing off. It’s moot now. Mr. Khan is now expelled and will have to fight his way back into Yale by way of the courts in lengthier proceedings.

New Haven jurors looked surprised at trial when they learned that Yale distributed condoms freely across campus. Two students heating sheets at night in rites of passage – why are we even in court? On the record assembled in open court last spring, a jury saw the case for what it was.

Yale couldn’t see it. After all, one student claimed to be a “survivor.” #HerToo?

It makes me want to holler: “It’s just sex stupid.” But the university wouldn’t listen. They didn’t want Mr. Khan to have a lawyer. And he was too polite to attack. He still believes in justice, and, for reasons that escape me, still wants to finish his degree at Yale.


About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis


Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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