Kendra Albert's Blog

I talk about the law, the Internet, and everything in between. I occasionally write about books I'm reading. That's about it.

[kendraserra]

Their Law: New Essay on Harvard Law Review Blog

I recently published an essay responding to They, Them, and Theirs, an article on non-binary inclusion. (Yes, the title is a reference to a The Prodigy song.) 

I’ll quote the beginning here: 

“Many gender-neutral restrooms and locker rooms are behind locked doors.  Not in the same sense that all bathroom doors are locked; rather, these spaces can be accessed only by either being lucky enough to slip in behind someone with authorization, or by pleading one’s case before some sort of decision maker—a literal gatekeeper.  In the most immediate sense, it’s the gym manager (“Can I use the temporary gender neutral facility?”), the information desk person (“Can you let me into the family restroom?”), or the key card provisioner (“I need access to the other floor because that’s where the bathroom I can use is. Please.”).

Other aspects of gender-neutral life can require a different, but intimately related, set of recitations to a more metaphorical set of gatekeepers.  Sometimes these pleas are heard by a therapist (“Can you give me a diagnosis so I can get this covered by my insurance?”), a doctor (“Please just let me have the anti-depressants so I don’t become another suicide statistic.”), or a judge (“Your honor, don’t make me publish my old name and new name in the newspaper in order to effectuate my name change.”).  Other times they are addressed to an HR manager (“My colleague called me by the wrong pronouns for the entire meeting and my boss didn’t correct him.”), a lawyer (“The new shift manager kept snickering about my pronoun pin and marked me as late even when I wasn’t…do you think I have a case?”), or an athletics organizing body (“Look, I just want to lift weights, okay? I don’t care which category I’m in.”).

It is the law that underlies these requests that Professor Jessica Clarke takes up in They, Them, and Theirs, her law review article on nonbinary people.  Rather than focusing on the moral claim that nonbinary people should have their genders taken seriously, Clarke takes up the logistical arguments that critics have mounted against nonbinary gender claims.  Most simply, she argues that including nonbinary people in existing social institutions would not require radical changes to the law.

...

Clarke’s thesis is not wrong.  She ably points out many ways in which nonbinary people can fit easily into existing systems and pushes back against common arguments, from the tyranny of grammar to the imagined threat of sexual predators in restrooms.  There is certainly a strategic argument to support the integration of nonbinary people into existing systems of state-sponsored gender.  But advocates for nonbinary people should not start with a goal of assimilation, even if that is where they end.  

You can read the rest at: https://blog.harvardlawreview.org/their-law/

Image from Vice’s Gender Spectrum Collection.

[kendraserra]

Baking as Carework

I changed my mind about bringing baked goods into the office. Twice.

I haven’t always had strong opinions on this complex and important topic. But in 2012, I brought in cookies for a meeting. I was nominally in charge of a large group of folks, and I figured as a courtesy, I would bake some cookies to make everyone feel better about having to attend on less than 24-hours’ notice. They were complicated cookies - Christina Tosi's chocolate chip marshmallow cornflake cookies. I overanalyzed how many people had eaten. Who went back for seconds. If they liked them. And as the cookies disappeared, I felt as if my authority to actually lead the meeting was disintegrating - crumbling into the carpet along with the stray crumbs. They were delicious. I swore "never again." No more baked goods in the office.

It wasn't a totally unreasonable position. I haven't been able to track down a citation, but I’ve heard that Sheryl Sandberg once said that you should never bring baked goods into the office. The unspoken end of that sentence is "if you're a woman." You should never bring baked goods into the office if you're a woman (or read as one). Because then you'll be a mom, rather than a leader, a nurturer rather than a respected colleague. And if you had to choose (and it certainly seems like you did have to choose), wouldn't you pick "respected" over "comforting"? I would. I did. Besides, opting-out of feminine labor as a feminine presenting-person felt radical. It felt transgressive.

It wasn't just that I had brought cookies into that meeting. I cared about what people thought about them. And that was the second problem - just baking cookies shows that you spent time and energy on taking care of others, a no-no - but desperately wanting people to like your baked goods is even worse. Caring about what other people think gives them power over you, and giving people who have to respect you power over you was scary.

Changing my mind about my no baked goods policy wasn't a bolt from the blue. I didn't wake up one morning, shout "the patriarchy is full of lies! good leaders can be vulnerable and show that they care!" and bake a whole pan of brownies for my colleagues. It was a slow process, like sugar caramelizing on the Great British Baking Show, where nothing appears to be changing until the entire pan is almost burnt. 

When I took a class from an amazing biological anthropologist who baked for us, her students, every week, I didn't respect her less. When I read Teaching to Transgress and bell hooks talked about the importance of being vulnerable and present in order to create a learning environment, I found myself nodding along. I thought about how many more risks I was willing to take with colleagues who were open about their struggles and uncertainty.  I followed a long conversation around emotional labor online and reflected upon how I loved the feminist spaces, where people put time, energy and attention into creating dialogue. 

Over time, I watched who was able to not focus on the feelings of those around them. I could, as a “scholar”, but my friend, the administrative assistant, she didn’t have that option. The black women I chatted with at conferences couldn’t – they’d be perceived as angry. My younger colleagues, who worked for male bosses who weren’t quite as secure as mine – they couldn’t get away with not performing emotional labor and femininity in the workplace.  I grew more uncomfortable opting out of care work just because I could.

In short, I found a thousand counter-examples to my initial thesis that there was a transgressive power to just opting out. In a society where vulnerability and care are devalued and seen as a sign of weakness, care-work, like baking, is radical.  Sometimes it is more transgressive to opt-in. To choose to do the work, even though you know you don’t (or shouldn’t) have to.

I now believe that vulnerability and visible care are not at odds with leadership and respect. They are inseparable. Admitting that you care, that you are willing to put in the time and energy, is fundamental to showing those around you that you respect them. And giving respect is a good way to earn it.

I’ll never quite know if I was right, in 2012, that I was respected less because I baked for people. It’s not clear if my confidence in embracing carework now come from the sense that I am more confident I am better at my job, more sure that I am worthy of respect (not to mention a better baker). But one way out of the trap of patriarchy, where you are damned if you do and damned if you don't, is to do what you would have wanted to do anyway.

So now I bake.

This essay is a slightly modified version of the talk I gave as part of the Harvard Law School Library’s Why I Changed My Mind event. You can watch the talk here. 

[kendraserra]

Difficult Speech in Feminist Communities

(This essay was originally published in 2017, as part of the Berkman Klein Center’s Perspectives on Harmful Speech Online collection. In the interest of making it more broadly sharable, I’m now posting it here.)

Many feminist communities online have developed sets of practices to accommodate, moderate and regulate speech. As we consider the implications of hateful speech on our online communities, it is vital that we also reflect upon how communities deliberatively deal with wanted yet complicated topics, and whether these practices can provide models for dealing with formulating and regulating speech according to community-developed norms. This essay discusses one such set of models – a set of interventions against what I call “difficult speech.”

Difficult speech is speech that is wanted yet may also cause discomfort or harm in a community with a shared set of norms. For example, a trans person in a community aimed at trans folks might want to discuss their body as part of seeking advice on dysphoria (a psychological condition of distress stemming from one’s body not matching one’s gender). However, for other trans folks, a person’s recounting of their feelings about their body may not be something that they cannot read without having suicidal thoughts. The issue is further complicated by the fact that what may cause difficulty for a person on their bad day might be perfectly fine a few days later. This variability, both across people and time, creates unique moderation needs. In writing this piece, I reviewed a small number (~5) of feminist sites, including both blogs with moderated comments sections and forums/private community spaces, to see how they deal with difficult speech. Content warnings and multiple channels with redirection are two options for handling this moderation that were common to multiple surveyed spaces.

Using Content Warnings to Offset the Impact of Difficult Speech

Perhaps the most obvious method of dealing with difficult speech is “content warnings” or “trigger warnings.” Content warnings are literal statements of the content of following text or images – for example, if a text contained the first-person narrative of sexual assault, a content warning might say “sexual assault.” (Generally, the term “content warning” is considered broader than “trigger warning” and thus I will use it.)

Content warnings are not unique to feminist communities, but are often more common in feminist spaces than elsewhere. Warnings can be used in a variety of circumstances, for content containing anything from depictions of rape to manifestations of white supremacy. In some communities, warnings are deployed along with tags that make the difficult material not readable unless moused over (“spoiler tags”). If material is not obscured, a content warning can be paired with a note about how long the warning will be in effect for (“CN: police violence, next 4 paragraphs”).

Communities often engage in discursive practices around what kinds of content requires a warning – allowing autonomy and discussion over shared values. Commonly chosen content warnings among some feminist communities surveyed include “sexual assault”, “transphobia”, “racism”, “war on agency” (reproductive rights), and “Nazis.” As demonstrated by this list, the potential options are broad, and often depend on the needs and characteristics of the members of the community.

Using Multiple Channels to Respond to Difficult Speech

Some communities use a combination between multiple channels and conversation redirection to handle difficult speech. For example, there might be two channels for a particular issue: #bodyissues and #bodyissues-unfiltered. When someone wants to talk about something that others might find difficult, either as explicitly mentioned in guidelines or just understood as a sensitive topic, they might post in #bodyissues with a content warning and a pointer – “I want to talk about a dysmorphia thing in unfiltered, if you’re up for listening meet me there.” Users who are able to support can view #bodyissues-unfiltered to read and comment. Other users who might not be worried about potential triggers can view the unfiltered channel as part of their daily community interactions.

Finally, a user who is finding a conversation taking place in the #bodyissues tag difficult can ask other users to move to #bodyissues-unfiltered. This allows for more situational reactivity than a more traditional content warning system.

Platforms, Affordances and Regulation

One notable characteristic of the aforementioned interventions that deal with difficult speech is that they rely on platforms having particular affordances, and making these affordances accessible to moderators – the power to ban members, to create multiple channels, and to block out speech (for example, with spoiler tags). Thus, difficult speech interventions may not be possible in communities that work on platforms without these. For example, a community on Facebook, couldn’t use spoiler tags, as they are unsupported by the platform.

Additionally, difficult speech interventions can be undermined by more traditional moderation actions by platforms. For example, imagine a racial slur is used in the context of explaining a recent experience and asking for reassurance. If an appropriate content warning is used, the harmful effects on members of the targeted community may be mitigated. Nevertheless, the post containing the slur might trigger a “shadowban” or “time out” from the platform due to the language – resulting in fewer people seeing the post at all, the exact opposite of what the user may need.

As I write this essay, Mastodon, an alternative social network, has been rapidly gaining popularity. Mastodon supports content warnings, and users from different Mastodon servers have been engaged in robust debate over what content deserves warnings, from politics to porn. Whether Mastodon ends up going the way of forgotten social networks like Diaspora or Ello or becomes widely adopted, it is notable that content warnings are now more integrated directly into platforms.

Since much regulation of speech is bound up in legal frameworks and debates over banned terms, community adaptations to difficult speech, like those taking place on feminist platforms or on Mastodon, suggest a new way forward for dealing with harmful speech online.

[kendraserra]

Making Your In-Person Event Inclusive of Non-Binary People

When I attend events, I’m often the first out non-binary person that the organizers have ever invited. Many times, I am the first out non-binary person they have ever met.

Image: graffiti on a wall that says “Gender Queer” in black text with pink and green highlights. CC-BY 2.0, Charles Hutchins.

With that in mind, I’d like to offer some guidance for a host who would like to make an in-person event (like a conference, meet up, or panel) more welcoming to non-binary folks. These steps may also make the space more inclusive to other trans folks, as well as potentially folks from other historically marginalized or underrepresented groups, but I am going to focus on interventions around non-binary inclusivity. Of course, this is drawn from my own experience – different people might have different suggestions or requirements.

This stuff is important because non-inclusive events are difficult to attend. At the most basic level, it costs me time and emotional energy when people fail to think about how to make their events more inclusive. Every moment I spend educating a fellow attendee or speaker is time I cannot spend doing the work that I was invited to do.

My general advice can be summed up in three rules:

If you don’t know, ask.

If you can’t control, acknowledge.

If you screw up, apologize and take steps to fix it. 

If you don’t know, ask.

Part of being welcoming to non-binary folk is to let go of assumptions about how to understand or treat people’s gender. I would almost always rather be asked beforehand about something rather than have the organizer make a guess. This can range from simple stuff, like what things would make a conference more welcoming to me, to more complicated and delicate topics.

As a positive example, when an organization had to book a flight for me, the organizer realized that in order to book they had to provide a binary gender marker. They asked how to proceed and if I had a preference about which one they chose. To me, this was incredibly affirming – they needed binary identification information from me, they made clear why, and they let me tell them what I wanted them to do.

This was much better than just guessing which one to pick, even if they probably would have guessed the gender marker that I chose. Their ask made me feel like I had agency, even in the face of a bureaucratic process that doesn’t allow me to opt-out. Also, said flight was vital for participation in the program in question, and airlines are not known for bending rules. They really did need the information. (It’s not appropriate to ask if you don’t need it.)

If you can’t control, acknowledge.

Sometimes you as an organizer don’t have an option to make a particular part of your event more inclusive. The contract was signed on the space and there are no gender-neutral/all-gender restrooms. The conference chair could not be budged from an introduction style. The sponsorship required use of a space that forces participants to show government ID.

If you have had to make a choice that you know is not inclusive, acknowledging it can help by making clear that you realize the outcome is not good.  At the very least, you can say this to invitees who you know are non-binary. You probably also should consider saying it to everyone, but I’m aware that can feel like a big ask.

A script:

“Hey, here’s your welcome packet. Also, I’m not sure if this is relevant to you or not, but we were unable to secure space that has gender-neutral restrooms this year. It’s in our requirements for next year, for sure. I’m sorry if this causes you any inconvenience, and please let us know if you have any trouble.”

This script doesn’t assume that the person needs a gender-neutral bathroom, but makes clear that you are thinking about it and will fix it in the future. Do not say you will fix it if you won’t.

If you screw up, apologize and take steps to fix it.

Unfortunately, American society is incredibly reinforcing of the gender binary, so it likely that all of us will screw up at some point. When someone screws up in a way that makes me feel othered or unwelcome at an event, I want at least two things from them: an individual apology, that makes clear that they realize why what they did was bad; and an explanation of the steps they plan on taking to fix it.

Some scripts:

“I’m so sorry I screwed up your pronouns when I was introducing you to our sponsor. I realize that probably have put you an uncomfortable position. In the future, I’ll practice beforehand to make sure I get them correct.”

“I realized when we divided the room up into men and women, I included you with the men because you are masculine presenting. I erased your non-binary identity. I’m sorry. In the future, I’ll divide the room in half in some other way.”

Specific guidance:

Location, space and logistics:

Default to not collecting gender information from people at registration. If you do collect it, make it non-mandatory, explain what you need it for (e.g., “to track the gender makeup of the conference over time”), and use a text entry form as opposed to radio buttons or checkboxes.

Gender-neutral restrooms are necessary. It is 2018. It is well past time to make your restroom situation more friendly for everyone. Choose restaurants and event spaces that have gender-free bathroom options, ideally including single occupancy. Or add gender-neutral bathrooms yourself by converting binary-gendered bathrooms. (Some folks prefer the term “all gender”, some folks prefer “gender free.” Personally, I would suggest “gender-neutral.” Frankly, it’s more important that you have them than what you call them.) If these restrooms are not easy to find, or located in a different place than gendered restrooms, include where they are in any printed materials. 

Avoid locations that require showing government ID to enter. I’m aware that there is an unfortunate trend for tech companies to require government IDs to sign into buildings. See if this requirement can be waived for your event.

Also avoid locations that require a binary sex identification in advance in order to attend. Unfortunately, that can mean that some government buildings that require pre-registration/a background check will not be open to you. However, if you avoid these activities up front, you can avoid putting a trans or non-binary person in a position where they have to choose whether attending is worth submitting such an identification or accidentally outing themselves.

If offering schwag, identify t-shirts as fitted and straight cut, not men’s and women’s! Don’t make assumptions about which style someone wants. (And offer both.) 

 Language and people:

Bare minimum: have a Code of Conduct that includes harassment based on gender identity and enforce it.

Non-binary people are not necessarily women. Femme non-binary people (people who present femininely) are not all women. Grouping non-binary folks or femme folks in with women is erasing. If you are hosting a women-in-X event, make clear whether non-binary or femme folks are welcome. Do not expect that the term women includes femme folks. (For more information on this, see Kat Marchán’s amazing post on the design of women spaces.)

Skip the phrases “ladies,” “girls,” and “chicks.” Don’t use biological parts as stand-in for gender: “pussy”, “xx” to mean a women’s event, etc.

Try not to use binary-reinforcing statements like “ladies and gentlemen” or “we’re dividing the group into men and women.” 

When calling on people whose names you don’t know, avoid gendered assumptions, like “the lady on the end” or “the man in the red shirt.” Instead, use “the person at the end of the row with short hair” or “the person with the beard in the red shirt.”

 Everyone’s favorite topic, pronouns:

Have nametags and politely suggest people write their pronouns. Everyone. Not just people who look gender non-conforming. Or, alternately, have pronoun stickers, and point them out to folks if at registration. Include a “just use my name” option, and an option for people to write in their own information.

Don’t guess people’s pronouns. Look for an indication (like a ribbon or them written on a nametag), check their online profile, or use they/them as a default. Some in-person events may have to explain to their attendees that this should be the norm. It is better for this to come from people in positions of authority rather than making individuals who want their pronouns respected do it.

If introducing a speaker, ask them to send you introductory bio, then read it. Ad-lib only if you can nail their pronouns. It is much better if someone just straight up reads a bio then if they attempt to improvise and get pronouns wrong. This happens to me regularly and it’s fucking horrible.

If someone’s pronouns are uncomfortable or unfamiliar for you, it is your job to practice them and get them right. If you screw them up in front of that person, apologize briefly and move on. Do not just ignore them. If they correct you, take this an opportunity to do better. It is inappropriate to explain to them how uncomfortable it is for you.

Trips and travel:

Going through TSA screening can be dangerous and traumatic for many trans and non-binary folks, especially those who have had surgery or otherwise taken physical transition steps. Some non-binary and trans people can face significant harassment on public transportation, and may prefer to take a ride-hailing service or a cab. So generally, being flexible around travel and especially around travel reimbursements is a good way to make your event more inclusive.

Provide individual lodging for people. Do not make people share rooms. Do not make gendered assumptions about lodging. Do not split up people into a “girls” floor and a “guys” floor.

Many non-binary folks may face discrimination or hostility in their workplaces, making it more difficult for them to receive paying jobs. So the best practice of reimbursing people as soon as possible for travel (ideally after booking, not waiting until they complete the trip) or providing non-reimbursement options for booking may make your event more inclusive.

Following Up:

Are you a non-binary person and there’s something that would make you feel more comfortable at events that I missed? Please let me know so I can add it! [email protected] or KendraSerra on Twitter.

If you’re an event organizer and you’ve found this content useful, I encourage you to make a significant donation to the Sylvia Rivera Law Project, which works to guarantee that all people are free to self-determine gender identity and expression, regardless of income or race, and without facing harassment, discrimination or violence. If you would like to have me consult about making your specific event more inclusive, drop me a line at [email protected].

[kendraserra]

57.3%

Last August, Jon Hanson asked me, as an alum, to give a talk to a group of Harvard Law School 1Ls about “life in the law.” It was one of the hardest talks I’ve ever given, because it’s some of the subject matter that’s still the rawest for me. It’s been sitting on my hard drive for a while, and although it fills me with anxiety, I figure it’s long past time I share it publicly. 

In November 2016, I was sitting in a hotel room in Pittsburgh and I had just found out that I failed the California bar, just like 57.3% of other people who took it.

Alex, one of my best friends from law school, and I took the bar together. Among 1500 test takers in Sacramento, California, we were randomly placed two seats apart. I'm on the phone with her when we get our results. She's convinced that the computer system failed, that there'd been some sort of mistake. After all, she walked out halfway through the first session (leaving me panicking on her behalf in the test room), and she's passed. Her faith in my ability to make up California law on the spot was touching, but I knew that if I'd failed, I'd deserve it. I hadn't studied hard enough. I had been convinced that adrenaline would pull me through on the day of–but the reality is that relying on sheer willpower is a bad strategy for closed-book high-stakes testing.

I'm not the only one who has failed the California bar. Every year, Above the Law publishes a list: Hillary Clinton, Michelle Obama, Kamala Harris, Kathleen Sullivan. Ridiculously successful people who were probably too busy doing useful things rather than studying for the test.

So back to Pittsburgh. Alex stayed on the phone with me, as I typed my exam number in again and again. She's sure something went wrong. I'm sure California's 42.7% pass rate had caught up with me. The next day, another friend posted about her bar experience on Facebook. She wrote: "…You only fail if you give up so maybe I won't say I failed but I also did not pass the California bar exam. Since Friday, I've been waiting for the tears to come. I've been waiting for devastation or anger. But it's Monday, and that hasn't happened."

I wasn't brave like her. I kept silent publicly, and I cried privately. I avoided questions about it, and as the exam where I would retake it approached, I got the bar exam mansplained to me because I didn't want to admit I'd already taken it and failed. I was convinced that all of my successes would be erased if people found out I failed the bar. That bar failure revealed the truth of who I was.

To be charitable to myself, there is a reason. Law is a status-driven profession. It would be foolish to tell you otherwise. It would be a lie to tell you that Harvard Law School does not open doors for you or that the right words on your resume will not get you at least an interview. My worry was at least justifiable, if not excused. (That's a criminal law joke, you'll get it after next semester.) I worried ceaselessly, for months, about what would the words "pending admission to the California bar" would do to me.

It is all too easy to believe that what you do is who you are. That success is measured in acceptances, grades, study group invitations, and the law review competition. But Harvard attendance does not make you a better person. Depending upon your resume and test scores to define your self-worth will lead to crying by yourself in a hotel room, ashamed to admit to your boss that you failed a fucking standardized test.  

Instead, I recommend you try your best to reject the idea that your successes will determine your value as a person. What I try to tell myself is that failing to pass the bar the first time doesn't diminish me, doesn't make me worth less because my worth does not come from my ability to overcome the hurdles of our profession. I fail at convincing myself of this a lot. But I still try.

So I'll say it to you: you cannot control what other people do, where the curve falls, or what California's cut score is. So do not make your own care for yourself contingent upon it. You do not deserve respect or care because you will someday pass the bar, or because you may get good grades, or even because you are in the best section. You deserve respect, kindness, and care because you are a person. Your value does not come from your ability to be a lawyer.

When I contemplate lessons I have learned about the law, I wish someone had told me that no matter how well you do in law school, or in life, tying your self-worth to how well your accomplishments stack up to other people's expectations sets an impossible standard that you will do yourself harm trying to reach. And also, the California bar is not that easy, so you might want to buy some flashcards.

[kendraserra]

Computer Security for Lawyers Now Out in the Green Bag

Computer Security for Lawyers is now out in the Green Bag! The Green Bag is one of my favorite legal publications, and I’m honored that a journal of entertaining things chose to publish my paper. 

Computer Security Lawyers is a paper about some relevant computer security concepts for lawyers who want to protect their client’s information. It’s not meant to be a dumbed down version, but rather, a condensed and targeted set of pieces of advice.

At some point, I may also update it to reflect the current state of the art, but for the moment, I’m just thrilled that it exists in print! You can read it here: http://greenbag.org/v20n2/v20n2_articles_albert.pdf

Thank you to Marcia Hofmann, Wendy Knox Everette, Greg Norcie, Maggie Delano, Bruce Schneier, Luis Villa, and Vivek Krishnamurthy for their feedback, as well as Joseph Lorenzo Hall for his encouragement.

[kendraserra]

Ally Skills Workshops

This summer, I’ve begun running Ally Skills Workshops for groups of people interested in learning how to combat sexism and transphobia. My workshops are based off the Ada Initiative's model and incorporate some of its CC licensed materials, as well as additional materials that I have developed. My slides are available here (ppt) or here (pdf).

For folks who are unfamiliar, an ally is someone who stands up in support of members of another social identity group; typically a member of a dominant group standing beside member(s) of a group being discriminated against or treated unjustly. The workshops I run are 2.5 hour interactive sessions for people to work on developing ally skills in a safe and comfortable learning environment.

I specifically focus on helping people recognize sexist or transphobic patterns, develop language to call out casual sexism and transphobia, and respond to uncomfortable situations. If you've ever come away from a conversation with someone who said something casually misogynistic and wished that you had known how to respond, this is for you.

 Here’s what some participants have said about my workshops:

"My ally workshop experience with Kendra was like a firmware update for my hippocampus. I will feel much easier connecting with folks outside my familiar network now."

"Overall I think this was the most welcoming and engaging workshop i have ever attended. Kendra made it easy to connect with nearly everyone in the whole group (30 or so people) but breaking into groups and letting everyone be heard. I was so impressed by the way they organized and facilitated the evening. It's also challenging and often uncomfortable subject matter so it was even more impressive that everyone felt comfortable enough to open up, listen to one another and share ideas. I personally learned a lot and Kendra tailored the workshop perfectly to empower everyone in our organization to better handle uncomfortable situations like ones that involved sexist and transphobic behavior. I hope we can have them back again!"

"A friendly, open atmosphere to discuss and think about complex issues. Often in real life situations, it's hard to know exactly how one should react to certain objectionable behaviors, and discussing good responses in a controlled risk-free setting helps to ensure our success out in the real world."

I’m so proud of this work, and so grateful to the Ada Initiative and specifically Val Aurora for releasing their materials so that people like me can learn from and build off of them. I’m also available to run them in all kinds of communities, so if this sounds like something your organization or group needs, ping me and we can figure something out.

[kendraserra]

New Paper: Computer Security Tools and Concepts for Lawyers

I have a new draft paper out! It’s called Computer Security Tools and Concepts for Lawyers. I wrote this paper because I often find that lawyers outside of tech spaces didn’t understand fundamental computer security concepts, like what encryption does, or what social engineering is. I also wanted a piece pitched at the right level for lawyers who just want to know how to do a better job at protecting client information. 

Because it’s impossible to give universally applicable security advice, infosec experts should note that I’ve tried to keep things pretty basic. This means that this paper is NOT a framework for super high risk threat models, and does not include a lot of the advice that might apply to activists or lawyers actively targeted by governments. However, with that caveat, I welcome feedback. Please shoot me an email if there’s something missing or something wrong! (Or if you like it - that’s nice too!)

If I do get around to another draft, I will probably be including secure file transfer methods (thank you, Wendy!) and some suggestions about use cases for Tor.

Computer Security Tools and Concepts for Lawyers

Abstract: Computer security can be full of jargon and difficult to understand, but protecting client data is part of the core ethical duties of any lawyer. This paper defines some core computer security concepts with an eye towards helping lawyers make better decisions about their own personal choices for security, and provides some basic advice to help lawyers implement the practices that security professionals recommend.

My favorite line: “The major worry for most lawyers should not be well-resourced hackers breaking into their firm network, but rather, the lost laptop, the chatty partner, and the reused password.”

Get the Full Thing: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2831739

[kendraserra]

Protect Yourself with Some Encryption

Belated link out: I wrote a piece over at MEL Magazine on secure messaging apps you should be using.

https://features.wearemel.com/app-ed-protect-yourself-with-some-encryption-cc4280f4b2cd

[kendraserra]

On Being Out

I think about being out a lot. Two things always pop into my head:

"I would like to see every gay doctor come out, every gay lawyer, every gay architect come out, stand up, and let that world know. That would do more to end prejudice overnight than anybody would imagine. I urge them to do that, urge them to come out. Only that way will we start to achieve our rights." - Harvey Milk

The story about Justice Powell's gay clerk during Bowers v. Hardwick. For those unfamiliar, Justice Powell famously said that he had never met a homosexual when signing onto the anti-gay majority opinion in Bowers, later overturned by the Supreme Court in Lawrence v. Texas. He had a gay clerk at the time.  (It's possible that he was lying to protect his not fully out clerk. )

To be out is a privilege as well as a burden. It is both an act of courage and the least we who are safe enough can possibly do. 

Times have changed since Justice Powell and Harvey Milk. I come out regularly as queer, and although my chest tightens every time I talk about my girlfriend with someone new, I am lucky enough to exist in environments where such a statement is no longer controversial or remarkable. Bisexuality, although often invisible, no longer represents the bombshell that it did even when I was in high school. I am so grateful for that.

As folks who know me have seen, I've been inching towards coming out as non-binary. Talking to friends. Using different pronouns at events. A Facebook post. Changed pronouns at school. Changed pronouns in my Twitter bio. Talking about non-binary issues and experiences at conferences. A new website with an FAQ about gender. 

For a while, I thought it was fine to only use "they" pronouns in professional contexts. I cared (and care) more about being publicly out as non-binary than about private pronoun usage. But a lot of thought and a number of recent events have convinced me that it is not enough to only ask my professional contacts. For better or worse, people take gender cues from the people closest to someone, not from their Twitter bio. I don't care any more if I seem inconsistent, or flighty, or if, god forbid, I am making things hard for people. If even one law student, politician, teenager or judge sees me and thinks "there is someone like me" or "I've met a non-binary person," it will have been worth it. 

So to be clear: I'm non-binary. My pronouns, for now, are they/them. If you're confused about the mechanics, I have a FAQ here. 

I ask you (yes, you!) to use those pronouns. I ask you to correct other people who don't use those pronouns. I ask you think about the ways you assume the gender of others, and the way your language reinforces the notion that there are only people of two genders.

I don't only ask you to do this for me. I ask you to change for the many other people you may know who haven't come out yet, who haven't figured themselves out yet, or who may never figure themselves out. We, together, can achieve our rights.

[kendraserra]

A Running List of AIs That Their Creators Claim Are Genderless

Somehow they all use she/her pronouns or a feminine voice. I don’t have a firm conclusion on this yet - I just think this is a very odd trend. 

Will be added to as I find more or as people suggest more.

Cortana, from Microsoft. Source: https://www.washingtonpost.com/news/the-switch/wp/2016/04/07/why-poets-are-flocking-to-silicon-valley/?utm_source=nextdraft&utm_medium=email

Ava, from Ex Machina. Source: http://www.wired.com/2015/04/ex-machina-turing-bechdel-test/

Siri, from Apple. Although I guess it’s more her than her creators? Unclear. Source: http://qz.com/409787/7-times-siri-understood-gender-identity-better-than-most-humans/

[kendraserra]

Baby Blue Activism at HLS

Last week, I organized a letter in support of Baby Blue, Carl Malamud and Chris Sprigman’s open citation manual. Over 165 students, faculty and staff signed on in less than a week. For posterity, the letter is available here. I also wrote an op-ed which appeared in the Harvard Law Record, and which I’m reproducing below, titled “Harvard Law Review Should Welcome Free Citation Manual, Not Threaten Lawsuits.”

Over 150 students, faculty, staff and alumni of Harvard Law School have signed a petition in support of Baby Blue, an open and freely accessible version of the Uniform Rules of Citation — the rules behind the Bluebook. The Harvard supporters are joined by numerous Yale and NYU law students in two separate petitions.

BabyBlue is new. It’s modern. It’s a legal citation manual that mentions Justin Bieber. Sprigman et anon. al., Baby Blue’s Manual of Legal Citation (Public.Resource.Org, 2016) 16, available at https://law.resource.org/pub/us/code/blue/BabyBlue.20160205.pdf. Unfortunately, the Harvard Law Review Association has threatened to derail BabyBlue through litigation.

Baby Blue is a project of Carl Malamud, one of the leading forces for the digitization of US law, and Chris Sprigman, a law professor at NYU that specializes in copyright. This fight is about open access to the rules of legal citation — not eventually, but now.

In October of 2014, Prof. Sprigman and Mr. Malamud advised the lawyers of the Harvard Law Review Association that they planned to publish a competitor to the Bluebook in the form of BabyBlue, using public domain materials.

As Prof. Sprigman has said, “Every person, including every poor person, should be able to cite the law.”

The Harvard Law Review responded with a letter suggesting that the Bluebook consortium would make “certain widely used content” publicly available in May 2015, with the publication of the style guide’s 20th edition.

That has not happened.

Instead, after seeing tweets that suggested that Mr. Malamud was preparing Baby Blue for publication, counsel for the Harvard Law Review sent a letter on Christmas Eve suggesting that Baby Blue, a title that the Harvard Law Review had been aware of for more than a year, would likely infringe the Bluebook’s trademark rights.

The intellectual property claims that the HLR Association made may or may not be spurious. But independent of that, the tactics employed by the HLR Association’s counsel in dealing with Mr. Malamud and Prof. Sprigman are deplorable. The Harvard Law Review claims to be an organization that promotes knowledge and access to legal scholarship. It is a venerated part of the traditions of Harvard Law School. But these actions by the Harvard Law Review speak of competition and not of justice.

What’s worse is that Baby Blue is no threat to the funding of the Harvard Law Review. Even a brief glance at the history of the Internet suggests that in a world where prestige matters, where students and practitioners alike begun their practice with the Bluebook, it is certainly possible to compete with free. However, any legal action against BabyBlue for copyright or trademark infringement will retrench the narrative that the Harvard Law Review Association is more interested in its own profits than in access to legal citation. And given a choice between an implementation of a system that is open and freely available, like Baby Blue, and one that has pursued legal action to silence competing implementations, many users may choose to move away from the Bluebook.

I personally urge the Harvard Law Review Association to make clear that it does not intend to pursue the copyright and trademark infringement claims discussed in its December 24th letter, and to open up the Bluebook so that an online version is available at no cost to pro se litigants, prisoners, and practitioners who cannot afford to pay. An initial letter from the joint representatives of the law reviews indicated that they were investigating such a possibility on May 20th, 2014. Surely one-and-one-half years is enough time to formulate a plan about how to make the Bluebook more accessible. Perhaps the Harvard Law Review could redirect the money it spends on legal fees ($185,664 in 2013) to offsetting any costs from providing theBluebook to those in need.

While it’s at it, the Harvard Law Review could adapt the Justin Bieber jokes present in Baby Blue to make the Bluebook more exciting for 1Ls. I’m sure Mr. Malamud and Prof. Sprigman wouldn’t mind.

[kendraserra]

An Optimistic Review of Crypto: Someday Steven Levy Will Be Able to Write about Women

Steven Levy can write compellingly about deeply technical subjects. He makes the history of cryptography come alive in Crypto. But god, I hate the way he writes about women.

To be fair, Crypto is better than Hackers in that there is more than one mention of a woman in the entire book. But women in his writing are still "diminutive" (a word likely never before or since used to described Cindy Cohn) (301), "diminutive" and "benign as Betty Crocker," (describing Dorothy Denning, 249). They are nearly always meant to provide texture to the men around them, not to be examined as humans in their own right. The popularity of crypto is illustrated by a sex worker recognizing Phil Zimmerman's name, nevermind that, of course, sex workers care about the security of their communications (289). That's even true when the men aren't part of the story. Maria Cantwell's stature is apparently not relevant to her effort to oppose export controls, but her father who isn’t a character is - she's described as the "daughter of a Wisconsin politician." (264)  

The woman who were dating or married to the main characters are even worse off. Take, for example, this description of Jim Bidzos, the successful marketer of RSA. "His journals from the seventies are permeated with notations about this woman or that. Still in his late twenties, he was living a Hugh Hefner–esque bachelor existence." On the next page, he meets a young woman that he "sensed might be the one." But what happens next?

"But when he finally cut the cord at Paradyne [the company he had been working at] and began a global marketing firm with some friends, his girlfriend uttered the words every confirmed bachelor dreaded: it’s now or never. She felt that if they didn’t marry, this new venture would take him away. Ever the deal maker, Bidzos chafed at being handed an ultimatum. It would be submitting to her terms. He would never get married under pressure, even to a woman he loved. So it was over. His girlfriend had been right about the lifestyle..." (139).

His girlfriend (we don't learn her name) serves a prop in a story about leaving a company - to show how much of deal-maker he is. Likewise, Mary Fisher, who Levy clearly interviewed extensively, is used as a way to introduce the reader to Whit Diffie and his personality. She's his "cryptographic muse," (25). (One of the first interactions the book chronicles is how he mansplained her about keeping exotic animals. But the behavior is excused as "she hasn't yet cracked his code.") Even how Mary told Diffie (who would later go on to be her husband) to treat her like a human is framed in terms of his reaction.

"Mary began to reconsider her initial repulsion to Diffie. But, in his failure to decode her, he seemed generally oblivious to her. On his visits he interacted only with the man of the house. After Mary and her husband moved to New Jersey, where he started veterinary school, she would sometimes pick up the ringing phone and hear Diffie’s cuttingly precise voice brusquely ask for her spouse, as if she were an answering service. One day she made her feelings plain. “Look,” she said, “I understand I’m not as bright as you and some of your friends, and I understand your friendship is primarily with my husband. But I don’t really think it would kill you to say hello.” The message got through. Diffie’s demeanor toward Mary dramatically improved, and she was not just startled but saddened when one day in 1971 he told her that he was going to travel for a while." (4). 

If they are not visibly dating someone important to the story, their technical credentials are ignored or downplayed. Levy describes Susan Landau as an "academic researching crypto policy" (168), but in fact, she was originally trained as theoretical computer scientist. Whit Diffie has a girlfriend who worked on an ARPAnet team, but we don't find out anything about her or what she did (25). Elizabeth Friedman, the first female cryptanalyst, is described as the wife of William Friedman. (33). 

It's infuriating. It encourages the reader to discount any woman who shows up in the story, because clearly their behavior is only relevant in so far as it gives us information about the men, the main characters. There are opportunities to feature technical women, or to tell us stories about people who are not Rivest, Shamir, or Adleman or Diffie or Hellman. But rather, we get the reactions of someone’s wife or girlfriend as a poor substitute. Gender is the most obvious axis in which this marginalization happens in this book, but I’m certain that this also occurs in race  - it’s just less obvious because the reader isn’t tipped off by pronouns.

The story Levy has told does not have a main female character. That constraint comes from history. But that is no excuse for discounting, marginalizing, and/or framing in terms of men the women who were actually there. It’s sloppy. And although it may have been more mainstream in 2001, I expect better now.

[kendraserra]

The Target pregnancy story is still the best example of the harms of big data.

I wrote a piece over on Medium about why I think the Target pregnancy story is still an important one to tell.

[kendraserra]

Wired Piece on ICANN WHOIS Changes

Sarah Jeong and I have an op-ed in WIRED about how a proposal floated in a working group at ICANN could have profound consequences for people being harassed online. Check it out here.

Along with other activists, we have created a coalition letter to submit as part of the ICANN public comment process. I’m glad we’re getting to make sure that this important part of this issue is heard.

[kendraserra]

Dear Copyright Office, Let Game Fans Keep Abandoned Games Alive

When you buy a video game, you expect to be able to play it for as long as you want. You expect be able to play it with your kids many years from now if you want (well, maybe not Grand Theft Auto).  And you would hope that museums and media historians could preserve the games that were so important to your childhood. But unfortunately, the Digital Millennium Copyright Act’s anti-circumvention provisions (17 U.S.C. § 1201, or Section 1201) creates legal risks for players who want to keep playing after game servers shut down, and curators who want to preserve games for posterity. That’s why I’m spearheading an effort to win legal protection for game enthusiasts and preservationists who want to keep abandoned games alive by running multiplayer servers or eliminating authentication mechanisms. On Friday, EFF and I filed comments with the Copyright Office asking for a new exemption to Section 1201.

Each year, more and more video games have their servers shut down. For some of those games, such as Mario Kart Wii, players set up servers to keep communities alive.  Enthusiasts regard this as a labor of love – a tribute to a game they cared about or had a special connection to, a way to keep a great game’s lights on for just a little longer. But they face legal risks, as changing a game so it doesn’t need to connect to a server that no longer exists could violate Section 1201’s ban on circumventing “technical protection measures.”

Game developers and distributors don’t run servers forever, and often shut them off when player numbers dwindle. Having player communities step in to preserve their games is a win for everyone. However, Section 1201 creates chilling effects that keep this from happening. And for games without dedicated programmers who are willing to take legal risks, communities disperse, moving on to new games or just disappearing entirely.

Section 1201 also has chilling effects on people who want to preserve or archive games, both those who are affiliated with formal institutions and those who are just enthusiasts. As digital archiving expert Henry Lowood explains, “Repositories and researchers [are forced] into the uncomfortable situation of considering unauthorized circumvention of copyright law in order to preserve or provide access to game and virtual world environments, data, and software.” Archiving and preserving playable copies is essential to future researchers, especially ones who wish to study the multiplayer components and the design of modern games.  In the words of game community sociologist T.L. Taylor, “playing together is not a trivial side aspect to digital gaming and this means that scholars need to be able to emulate conditions of original use as much as possible.”

The exemption that we proposed covers games where single-player or multiplayer play is no longer possible, either because the game’s developers have shut down servers or abandoned them. (It does not cover massively multiplayer online games with persistent worlds.) Experts from the Internet Archive, Stanford University, MIT, and the Museum of Art and Digital Entertainment filed statements in support of the exemption.

We think Section 1201 is an unsound, overbroad statute that chills huge amounts of legal reverse-engineering. And it allows companies to maintain a chokehold on their works even after they give up on the communities that love them. It shouldn’t exist. But since it does, we ask the Library of Congress to grant an exemption to help enthusiasts of all types continue to play and preserve the games they lawfully own.

Crossposted from the EFF's Deeplinks blog.

[kendraserra]

DMCA 1201 Exemption for Video Game Archiving and Play

I filed a DMCA 1201 exemption proposal with the EFF on Monday.

Section 1201 was passed as part of the Digital Millennium Copyright Act, and makes it illegal to circumvent access controls to copyrighted works, even when the underlying use is fair. It has hit security researchers and the reverse-engineering community especially hard, as companies often use it to threaten legitimate disclosures of technical information.

It also means that reverse-engineering or modifying server protocols in order to run third party servers for video games occupies a strange legal space - on the one hand, there are some projects that do it, on the other, under the reasoning used by the court in the bnetd (Davidson Associates v. Jung) case, it may be illegal.

This exemption aims to fix that problem, and if granted, will reduce the legal uncertainty surrounding format-shifting archived games. It's been amazing to talk to the folks in this community that care deeply about preserving the cultural heritage of video games, and I really hope the Copyright Office sees how valuable this exemption could be.

You can read the full thing here, or the Ars Technica coverage, which sums up a lot of the key points, here.