April Fool’s Day, the HLS Cafeteria, and the Misleading Rhetoric Surrounding the Repeal of Obama’s Privacy Regulations (my entire life comes together in one week)

This may be my most controversial blog post yet.  Next week, I will return to my Series on insurance subrogation and federal pre-emption so we can once again bask in a pure legal issue.   For now, I detail how all of my (perhaps) wacky views collided in one extraordinary week, and why I wish we, as a culture, would embrace them more.

Yesterday, while sitting in a coffee shop, I received the following email.



I was immediately shocked and dismayed.  I wondered if someone had a vendetta against me.  I wondered if I had actually done something reprehensible.  I wondered how annoying the process would be to clear my name.  I wondered if the anonymity of the complainant would be revealed, and I considered the due process ramifications if not.  I texted some friends about this distressing development, and then I realized that these same friends may have played an ingenious April Fools’ Day joke on me.

A couple of years prior, these same friends had organized a call, from a Google phone number, where one of them pretended to be a law review editor revoking an article acceptance.  Again, I was horrified and upset, and again, I was absolutely delighted when I realized the joke.  That law review prank required a day for my heart to slow down.  I recovered from this year’s prank more quickly, but it took me longer to realize it was a joke.  For several minutes, I vacillated between laughing out loud in Starbucks and worrying that maybe this notification was legitimate.  When I finally responded to the email, my friends clarified that, yes, I was being pranked.  My day became wonderful; no matter what else was going on in my life, I was not in immediate danger of losing my law license.

Some other responses to the joke were not as sanguine.  Although many praised the masterful prank, some believed this prank to be beyond the pale.  My friends, of course, know that I enjoy pranks (although I’m not sure they knew this the first year they got me).  But more than that, I believe in pranks.  I believe that this world, which becomes increasingly more controllable, predictable, and sanitized as technology improves, needs more of a what I call “funcertainty.”

Funcertainty is a concept that describes the pleasure you derive from getting something that is not quite exactly what you want.  I debuted this concept in conjunction with my response to the Harvard Law School cafeteria.  The food at the HLS cafeteria was delicious, and there were tons of options, but, like most cafeterias, the food did not taste precisely as one would expect (or perhaps even want).  This frisson between what I would design for myself and what actually occurred made me feel alive.  I enjoyed the food so much (seemingly far more than most), but more than that, I enjoyed the funcertainty.

In my experience, people don’t seek out or enjoy funcertainty enough.  They read Yelp reviews to ensure the restaurant they patronize is exactly what they want.  They coordinate every moment via text to avoid waiting, which also avoids any semblance of spontaneity.   Our senses of adventure are atrophying.  Risk is, however, necessary – both for character building and for enjoying potentially higher rewards.

Fear of emotional unpleasantness or risk has its downsides.  Although I am glad we are learning more about emotional health and de-stigmatizing mental illness, there is good reason to believe that we over-prescribe anxiety medication, overvalue emotional “safety,” and over-correct “hazing.”  This all has great consequences for free speech values, because speech is designed to challenge us, make us vulnerable, and alter us.  Progress requires risk, and sometimes pain.

Further, what we get when we are provided everything according to our specifications is usually a false sense of comfort.   Our politicians and political pundits on both sides of the aisle are lying to us, because we seek out distorted versions of difficult, nuanced issues.   Recently, hundreds of thousands of dollars of people’s money was donated based on the false claim that, if the Republicans succeed in revoking Obama’s Internet privacy regulations, anyone can buy any individual’s browsing history.

This is false.  First, Internet Service Providers do not sell individual data, but abstracted data, and have been doing so for a while.  Second, most ISP contracts already provide that they won’t sell your identifiable browsing history.  No ISP could get customers if they sold individual browsing histories.  The market was already taking care of this potentially egregious  privacy problem.

Regardless of whether you support Obama’s privacy regulations (which seem fairly modest and wise) or the Republicans’ desires to revoke them (which do have some merit), the way many are framing – and eagerly believe the framing of – this issue is irresponsible.  The inflaming of political partisans based on false but secure-feeling truths leads to further political divisions and demonization of the other side.  And it’s lazy.

Emotional sanitization is robbing us of our ability to enjoy funcertainty and engage productively on issues that are challenging.  The balm we seek may heal sometimes, but it also causes may of our social and political problems.