But if you've been thinking for the better part of a decade about how to meet this challenge that no one could possibly have imagined, this way is not how.

Why Not Video Conferencing?

In the course of eight years of learning and experimentation about law school VirtualInstruction, video-conferencing was a tool that became easy to reject.

I began working with video-conferencing technology in the late 20th century, when it was a plaything of elite business managers. I used it in my law practice for remote conferencing with CEOs and General Counsel in the companies that made the tech and believed in their own products.

For bridging between two well-prepared locations to facilitate structured interactions between a small number of individuals (including dedicated business conference rooms, seminar classrooms in distant schools, or—in one case—banquet rooms in Beijing and Shanghai restaurants) with near-life size displays and ingeniously-positioned cameras, I found video-conferencing not entirely useless. But used as schools around the world are currently using it, for large multi-party free form interactions among individuals using personal screens and commodity endpoint devices, it is not only ineffective but actively pernicious.

Used for hours each day, low-quality video-conferencing is mentally debilitating. Tens of millions in the supposedly-advanced world have now learned this. Everybody hates it, everyone complains about it, and it's still being used anyway, because people have convinced themselves there is no alternative.

The cognitive psychology problems with this form of commodity video-conferencing are all but self-evident. Human brains are highly evolved to track motion, to read faces, to judge credibility, trustworthiness and intellectual authority by "looking into one another's eyes." Large numbers of moving faces with which we cannot make eye contact, rendered with "uncanny" glitches at too small a scale, don't stop our brains from trying to do what their neural stacks are evolved to do: they merely cause fatigue and overload from the "wheel-spinning" involved in trying to do what they cannot actually achieve, hour after hour, while also trying to learn.

The perceived need for video-conferencing user interfaces to show us our own face at all times as a matter of technical and design priority only increases the social stress of trying to concentrate on the substance of a class conducted in this modality. Physical immobility required in order to demonstrate continuing attention to other participants adds to the overall physiological and cognitive stress.

Physical, social, and cognitive friction are maximized, while intellectual freedom is minimized. As students in my 1L course have been taught for decades, the Second Rule of Social Psychology for Lawyers states that "hominid primates believe what they see and imagine what they hear." Evolutionarily we evolved as diurnal animals whose primary reliance is on vision to provide reliable, three-dimensional sensory awareness of our environment. At night, in darkness, when our primary sensory array is unreliable, we make elaborate mental constructs to adapt our secondary sense to the role of threat detection. We interpret what we hear, imaginatively, to construct the world we cannot see. As the 20th century learned in the era of radio, if you want to activate imagination about ideas, address the ears, not the eyes. In the era of the "podcast," virtual instruction occurs best through the intimacy of coherent speech "inside" one's head. The ability to listen and imagine while doing other things with one's hands and eyes, rather than sitting still in a fixed position registering "attention" for others' gaze, is a crucial advantage when the virtual instruction occurs across multiple timezones while students are confined in epidemic conditions.

The case for video-conference law school is outstandingly weak, but it goes on anyway, because it is apparently the least significant change necessary to move classroom instruction onto the Net. This assists hard-pressed faculty and administrators trying to improvise a mode of instruction under unforeseen conditions threatening the economic viability of their schools: Something resembling a simulacrum of the previous product can still be delivered, perhaps at full price. For teachers who are afraid that no one is listening, the array of faces—with their own prominently included—reduces insecurity and conveys a sense of control. But if you've been thinking about how to meet this challenge for years, this way is not how.

And Then There Is Zoom

The architectural disadvantages of commodity video-conferencing for law teaching are incurable; no implementation can eliminate them. But to these insurmountable objections, Zoom adds a series of disqualifications all its own. As everyone has now learned, its absence of security is risible, its privacy invasions are central to its data-mining and advertising-based business model, and it pushes its data flows through servers territorially under the control of a government hostile to academic freedom, rule of law, democracy, and human rights. Because the government of the PRC now claims extra-territorial jurisdiction under the national security law intended to eliminate civil liberties in Hong Kong, the use of any communications medium deliberately complicit in PRC listening should be prohibited in US universities, let alone in a law school admitting Hong Kongers and other Chinese students.

Here too the existing policies and practices are improvisations, based implicitly on the ignorant belief that there is no available technological alternative. Even if video-conferencing were a good way to teach law school, Zoom would be the worst possible technological choice.

The free software community created and maintains a video-conferencing system intended specifically for educational use. BigBlueButton does everything that the centralized data-mining platform built by Zoom can be creakily adapted to do, and more. BigBlueButton is a "federated" service platform: anyone can run a server and integrate its communications technologies with common course-delivery systems, like the proprietary Canvas system on which Columbia Courseworks, a student-surveillance system with a side-hustle in curricular delivery, is presently based. If we were the Indian Institutes of Technology, the MITs and Caltechs of India, we would be using BigBlueButton. But of course, we're not.

Although I have no direct need in these courses for video-conferencing, it is important for the Zoom illusion to be punctured. So late in fall term 2020 I will put a BigBlueButton server up at the law school. I will build the physical server with my own hands from loose parts, which is how I like to work, install and configure very byte of software from the kernel up, and make somewhat better lousy video-conferencing available in the law school, that doesn't invade your privacy, spy on your ideas, cost money for the University to use, or pretend to be better than it is. Freedom begins by knowing that another world is possible.

-- EbenMoglen - 09 Sep 2020

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