-- HarryKhanna - 20 Jul 2012

Who Controls Dissemination of Information?

Introduction

The past two decades have borne witness to an increase in public access to mobile digital video recording and data sharing technology. We may be in the incipient stages of a substantial shift in the balance of power with respect to whether a small cadre of powerful individuals and institutions may control the flow and dissemination of information in society. Citizens of the connected electronic society may be able to exercise liberties in expression and press to a greater extent than members of prior generations, if the global mass media corporations, governments, and other potentially nefarious entities cannot stymie their emergent freedom of action.

Individuals Empowered

Two technological developments, among myriad others, have contributed to ushering in a potential change in how many people obtain visual data about events occurring far away. Cameras shrunk precipitously and started to be routinely attached to phones that a sizable proportion of people carry with them wherever they go. Blogs, social media websites, and other online portals arose that facilitated the propagation of information between individuals. These changes have made it cheap and easy for a wide swath of people in even moderate income societies to record and share media with an unlimited number of other people passing it through corporate or state filtering, editing, and censoring.

Citizen-recorded videos of government abuses, spread rapidly through the internet, have informed the public about events corporate or state media may choose not to cover. (See video of the Agha-Soltan’s killing in Iran, which became a rallying point for regime opposition demonstrations, prhttp://www.guardian.co.uk/world/video/2009/jun/23/iran-neda). In the recent past, it was not quite as simple for a simple video record of state-sponsored abuse to reach a mass audience.

When Holliday recorded Rodney King’s 1991 beating, it was comparatively rare for a private citizen to have quick access to video recording equipment. Holliday's capture of police brutality on film was a rare and momentous event. Even after the events were on tape, the videographer had no direct means of sharing his video with the public. He had to sell the videotape to television networks in order to have it disseminated. Corporate media, not the actual filmmaker, had a high degree of control over how and when the public came to see the video.

These developments allowing information to travel more freely and directly between private actors do not necessarily mean that there will be massive social rearrangements. Neither the King or Agha-Soltan incidents sparked revolutionary change within the structures of power that led to the victimization of those depicted on video. However, the winds of change do not always blow so lightly. Just two years after the Agha-Soltan killing, viewers around the world were able to see primary source reports from the front lines of the Arab Spring demonstrations that toppled regimes across the Mideast. Of course, the massive demonstrations and rapid regime changes cannot be directly attributed to videos or even social media sharing generally - the Eastern European revolutions of 1989 proceeded rapidly without the modern internet. Nonetheless, the moderate claim that the public had access greater information about the 2011 revolutions as a result of citizen journalist file sharing, than private "free" media had sufficient permissions to report on and local state-run media was willing to provide, cannot be seriously contested.

Corporations and Governments Strike Back

The rise of individual citizen journalists may not look nearly as impressive when one considers the fact that roughly nine mass media companies dominate the private news market in much of the developed world - Disney, Comcast, Time Warner, News Corporation, Viacom, CBS Corporation, Sony, Bertelsmann, and Vivendi. Despite this daunting cabal of mass media titans who continue to consolidate their grip on old forms of media, consumers of information today have access to countless blogs and social media websites that the news corporations do not control. Although social media websites have breached personal privacy on a large scale and engaged in censorship on a smaller scale, they would most likely be loathe to aggressively censor and curtail access at the behest of corporate or state masters because it could severely alienate their user base. Far from attempting to attempting to countervail the rise of online citizen journalism, corporate media appears to be attempting to include it in their broadcasts. (See http://ireport.cnn.com/ or http://ureport.foxnews.com/).

Governments may possess the power to shutter websites and curtail certain types of file sharing. Mubarak cutoff access to various social media platforms during the Egyptian revolution. The U.S. government seized Megavideo in the wake of copyright infringement claims. Despite these measures, members of the public desperate to share ideas and media have found effective alternatives via other online platforms. Although certain regimes could conceivably shutdown entire mobile data networks, the disastrous economic consequences of doing so for an extended period would likely persuade them to reverse course or lead to their downfall.

An implicit assumption of the claim that the balance of power over information dissemination is shifting is that private file sharers provide useful data to viewers. Cynics may assert that citizen journalists do not provide sufficiently accurate or sophisticated analytical commentary with their uploaded videos and blog posts to facilitate contextualization and also lack the requisite credibility and gravitas to inspire public belief. In short, raw videos or other independent reports allegedly may not provide informative or seemingly informative information. I would counter that even poorly conceived and contextualized can inspire massive social discussions that lead people to inform themselves. (See Kony 2012). Additionally, certain types of videos and other media may speak for themselves without requiring much supplementary analysis, e.g. uniformed authority figures abusing dissidents in a public square during a mass demonstration.

-- By KieranCoe - 16 July 2012

Why are you using criminal process examples? They will distort your analysis.

can be represented as a random variable equal to a sequence of parameters, each of which is one element of observable objective reality. This is a gross simplification, but it allows for some intriguing suppositions. Every sensory observation of an event is essentially a sample of some parameters of the random variable called Truth. Meanwhile, Truth has an expected value calculated from the aggregation all of its parameters, which cannot all be sampled at once by any technology.

The distortion has already set in. Some of the facts in some crime situations, like some automobile accidents, can be seen in a video, from one angle. But most facts about which litigation (even criminal litigation) occurs aren't objects in a field of view. The existence and interpretation of a contract, or the behavior of a hypothetical reasonable man, or the existence of a sufficient disclosure, or the intent to incur reliance on a material misrepresentation, are facts that cannot be captured on video. All this stuff about Truth actually turns out to mean a few less important truths sometimes.

Nevertheless, by the Law of Large Numbers, as the number of imperfect samples of Truth approaches infinity, the average of the results from all the samples will approach the expected value of Truth (NOTE: I am using the term "average" loosely). This means that given an infinite number of imperfect witnesses (samples), an adjudicator would be able to ascertain the Truth about any given crime. It also suggests that as there are more witnesses to any crime, the average of their observations will converge towards the Truth.

So that things reported by large numbers of eye witnesses are more likely to be true than those reported by a smaller number? Or is this only true of video cameras? In which case, what's become of the argument from numbers?

A video is not “reality” is the sense that any individual video is a complete record of the full Truth. However, I presume that recording technology can indelibly capture more data than any human is capable of either measuring or retaining.

Either yes, or no. Mostly, no. Now what?

Moreover, you're not really talking about the camera, are you? You're talking about the memory which the camera feeds. And the issues about that memory aren't solely how much they "capture" but how they keep it and how we know. So why are we talking about video only? Why aren't you saying "because Google knows more and more about everything, pretty soon all trials will only require testimony from Google, and then everything will be perfect because we will have Truth"? Probably you understand why that's nonsense, yet the video cameras connected to Google are somehow different. Who, from your point of view, is to be cross-examined? Or is it your point that video makes cross-examination of witnesses unnecessary?

If true, this means that a video of a crime is a larger sample of the Truth than a witness’ observation. Applying the Law of Large Numbers, if sample sizes are increased in every trial, then the rate at which the average of sample means converges towards the expected value of the population increases. Therefore, if I am right that video is a larger sample of reality than human observation, then adding videos of an event will lead to a faster approach towards the truth than adding an equal number of witness observations.

The essence of this sweeping argument is two claims: (1) Objective reality exists and can be represented by a random variable equal to all of its parameters

This is nonsense. What did you mean to say?

and (2) Videos are larger samples of the Truth than witness observations. Robustly defending these two claims is beyond the limited scope of this exposition.

No, that's weaseling out. What you mean is that you have an inkling this position is indefensible and you're not going to try.

Not going to happen.

Only for that rather tiny segment of the world's useful information that can be caught on a video camera pointed at the street.

But that doesn't mean that's the only way people ever were identified or caught, or that crimes previously went unsolved. To establish your proposition you'd have to show a great deal more than you have showed.

You don't need me to explain the fallacy in that argument.

The problem here is still lack of substantive editing at step one. You had an idea: "there are so many more video capturing devices than there used to be, there's going to be more video evidence, more completely covering more places and events." This is true, but the reasons why (1) that's not admissible evidence; (2) no matter how many cameras there are, most things don't happen in their field of view; and (3) most facts are not subject to being proven by video of any kind, should have been clear to you, after I sent you back to consider objections. You dealt with the one particular objection I raised last time by changing your text to use the "this is an objection but nevertheless I believe" move, which isn't really dealing with at all.

So I have to say again what I said last time, which I find disappointing. Take your idea back to the shop. Consider its limitations and the possible objections. Modify it consequently, and shape a new development around it.

What Frank Could Have Foreseen

Limitations

The human agents recording videos might intentionally manipulate them to skew the representation of the depicted events. Nevertheless, as long as the number of manipulated videos is small compared with the total number of videos, then introduced bias ought to remain relatively slight. When Hitchcock showed moviegoers a shower scene in “Psycho,” most thought that they had seen Janet Leigh naked. They hadn’t. They had been duped. Perhaps someone manipulating their gaze in another way could have similarly duped them even if they had been standing in person in the bathroom at the Bates Motel. However, if there were numerous security and mobile phone cameras in the room, each independently capturing the event, I don’t think that such chicanery would be possible.

Perhaps an even more damning limitation of the foregoing model and its application is that video cannot directly prevent the conscious or subconscious biases of fact-finders from skewing factual interpretation of even the most indisputable evidence. This was starkly exemplified by the 1992 acquittal of the officers who beat Rodney King. Nevertheless, I believe that as factual evidence becomes more palpably indisputable, social forces far more powerful than the law may curtail the flexibility of fact-finders to disregard resonant Truth.

Can Video Make Fact-Finding More Objective?

What Frank Foresaw

The Model

Application

Are you the world's last believer in the "reality" of video?

Though very often without being able to shed any light on who fired them or where the bullets went, which might be thought of as a fairly significant drawback.

I speculate that there is an inverse relationship between the ability of courts to skew evidence to suit preconceived biases and the indisputable precision of recorded facts.

Can you also speculate on the non-existence of indisputable precision? Or the inverse relationship between claims of indisputability and actual accuracy?

There are myriad ways to discredit a human witness, but a video is a considerably more difficult piece of evidence upon which to cast aspersions.

Not at all. Every video has a beginning and end, a frame, technical limitations, and susceptibility to technical manipulation.

This is not to suggest that videos completely overcome the problem of subjective interpretation. In Harris, a video of a high-speed police chase served as the primary piece of evidence in a motorist’s claim that the police used excessive force. Neither the judges on the District Court nor those on the Court of Appeals considered the video to be sufficient grounds to dismiss the motorist’s claims, but Justice Scalia interpreted the video differently than the lower courts and chose to grant summary judgment for the police.

Really? Having led to the acquittal in the prior trial? Saying what, other than that video evidence is no more self-interpreting than testimony, right?

This means that you claim that this will happen sometimes. It's not much of a claim, after not much of an argument.

The prevalence of mobile video recording and the capacity of social media websites to rapidly convey information to the public may transform many street crime cases into situations like that of King, where the courts were ultimately unable hold the line against what the public saw as a more just outcome.

To use the King case as a sign of the special transformative utility of video evidence is a bizarre form of not acknowledging the objections to your argument.

Which is the primary weakness of the current draft and the best route to improvement. The current draft is literally out of touch with the presence of objections or conflicting arguments. You need to edit yourself scrupulously, asking of your outline at each stage what the strongest arguments are that can be made against your point. You need to deal with them by confrontation or reasoned avoidance, and you need to indicate the limitations placed upon your argument by the objections that cannot be answered.

What Frank Saw

Is Objective Fact-Finding Possible Under the Camera Lens?

What Jerome Frank Saw

Jerome Frank might be persuaded to qualify his position that fact-finding is an inescapably subjective process if he were given the opportunity to pierce the veil of time and live in our world of ubiquitous video recording. A man of tremendous foresight who trusted the power of scientific instrumentation, he opined in Law and the Modern Mind in 1930:

"It is no easy task for the judge to bring together in his mind for the purpose of finally reaching his conclusions as to facts, what is frequently a voluminous body of testimony… It may well be that the courts will some day adopt a recent mechanical innovation and that we shall have ‘talking movies’ of trials, which will make possible an almost complete reproduction of the trial so that the judge can consider it as his leisure."

Twenty years before penning Courts on Trial, Frank envisioned a world where video accounts of proceedings would dramatically ease the process of judicial fact-finding. I posit that the spread of mobile video recording has already and will continue to lessen the subjective nature of fact-finding. I do not assert that we stand on the verge of completely eliminating all subjectivity, but I advocate for the view that modern legal magic be overcome by a meaningful step towards objective fact-finding in legal science.

What I saw

On the morning of February 10, 2012, I watched an appellate argument at the Second Circuit in the case of United States v. Siddiqui. The U.S. relied upon conflicting eyewitness testimony in charging Siddiqui with having shot several military officers. The eyewitnesses could not agree as to the number of shots fired or the types of guns used in the shooting. Defense counsel’s forensic expert even suggested that no shots had been fired at all based upon the lack of evidence that projectiles had actually impacted any surface in the room. That appellate judges had to weigh the credibility of witnesses they had not even directly observed put Frank’s 1930 and 1949 theses into sharp relief for me.

What Other Courts Saw

The Second Circuit judges would not be compelled to resort to as much subjective credibility determination if they had access to video evidence of shootings. Although some of the first courts to view photographic evidence held it in no higher regard than eyewitness testimony, later courts have held videos to be an invaluable means of peering into the reality of past events. Cowley v. People, 83 N.Y. 464 (1881); Scott v. Harris, 550 U.S. 372 (2007) In the past, having a video recording of the typical street crime might have been a rarity, but today the streets are crawling with mobile phones each with video cameras capable of recording events to a level of detail far exceeding the mental capacity of human witnesses to recall specific events. A video might fail to convey the smell of gunpowder at a shooting, but it rarely fails to record the number of shots fired.

I speculate that there is an inverse relationship between the ability of courts to skew the evidence to suit their preconceived biases and the indisputable accuracy of that evidence. There are myriad ways to discredit a human witness, but a video is a considerably more difficult piece of evidence upon which to cast aspersions. This is not to suggest that videos completely overcome the problem of subjective interpretation. In Harris, a video of a high-speed police chase served as the primary piece of evidence in a motorist’s claim that the police used excessive force against him. Neither the judges on the District Court nor those on the Court of Appeals considered the video to be sufficient grounds to dismiss the motorist’s claims, but Justice Scalia interpreted the video differently than the lower courts and chose to grant summary judgment for the police.

What All The World Saw

Video evidence arguably moved the judicial system closer to the possibility of a just outcome in Rodney King’s case. This remains true despite the venue change to Ventura County and the 1992 acquittal of the officers. King was surely not the only black man subjected to police brutality in L.A. in 1991. But it is likely that his case was given substantial attention primarily because of the video. Other victims without video records may have lacked any meaningful chance of legal recourse. The power of the graphic evidence ultimately led to the conviction of two of the four officers in the subsequent 1993 federal trial.

Where Do We See Things Going From Here?

I suggest that in many cases, video evidence can point so unequivocally toward the truth that public opprobrium and media coverage prevent courts from hiding behind logically twisted legal magic to justify subjective determinations of evidentiary credibility. The prevalence of mobile video recording and the capacity of social media websites to rapidly convey information to the public may transform many street crime cases into situations like that of King, where the courts were ultimately unable hold the line against what the public saw as a more just outcome.

-- By KieranCoe - 13 Feb 2012