Before, With, and Against the Internet: Legal Consciousness and Our Digital Selves

I think about identity a lot. I read about it. I research it. I write about it. While at times seemingly disparate, covering topics like capital punishment, community policing, immigration, the legal profession, MS-13, the Occupy Movement, procedural justice, and state-corporate/corporate-state crime, my work is united by it. Identity is, indeed, at the core of my academic self.

More often than not, I like to explore identity in relational terms, or from the perspective of positionality. Specifically, I spend much of my time wondering about people’s positionality toward “the Law” (that magical entity that, just like “the Economy,” manages to exist apart from those who create and operate it, or so it may seem). For instance, how do protestors relate to police? How do immigrants relate to deportation orders? How does a union of Mexican miners relate to the State?

I often draw upon the concept of legal consciousness, or the ways individuals think about and interact with the Law. Legal consciousness taps into questions of identity, rights, behavior, practice, and power. It encompasses people’s thoughts, opinions, preferences, expectations, and attitudes about law, legal actors, and legal systems. Interestingly enough, I think this concept is useful for interrogating the notion of digital identity or, more specifically, our positionality to the Internet and our digital selves.

In The Commonplace of Law: Stories from Everyday Life, Ewick and Silbey (1998) provide a framework through which to examine legal consciousness. As the pair explain, there are those who find themselves before the law, viewing the law as all-powerful, intimidating, and something to be obeyed. There are those who are with the law, who see the law as a tool that can be manipulated in their favor. Then, there are those who are against the law, considering it something to be interrogated, challenged, and contested.(1) 

Arguably, these stances toward the law can be translated into stances toward the internet that shape our presence in the digital world.

Those of us who are before the internet are in awe of—and afraid of—its power. We tread lightly, concerned about leaving too large a digital footprint, unsure of what could arise from engaging in online spaces. We believe that controlling our digital identity is almost entirely out of our hands—once something is up on the internet, there is no turning back. In the rare moments when we dare traverse the web, we seek out the expert guidance of the Geek Squad and the Genius Bar and FAQs. We are on the lookout for suspect Nigerian business opportunities. Generally, we lay low—as visitors—and keep to the shadows.

Those of us who are with the internet are attracted to what we see as its utility: attention, connection, creation, influence, networking, promotion. We read tips on building our academic “brand” on social. We listen to not one, but two weekly podcasts, plus daily downloads of the New York Times or the Washington Post. We not only inhabit the digital world as residents, we actively avoid the digital shadows through comments, #hashtags, likes, livestreams, @mentions, retweets, and stories. We take advantage of the internet’s ability to collapse space and time, uniting us and our deliverables with ever greater (yet increasingly specific) audiences. We dream of the day we deliver our first TedX.

Those of us who are against the internet refute the notion that we must participate. We control our digital identity by not having one. The fact that it is 2019 does not mean that we need incessantly check our email on our smartphones, live tweet at our professional associations’ annual meetings, or incorporate memes into our Powerpoint slides—although we sometimes do, aiming for irony, sarcasm, or to simply keep our students from falling asleep (often winding up the butt of a dad joke). We are, begrudgingly, open to the internet. But, we are skeptical. We do not trust that the digital world can truly deliver on its promises. We point to selfie deaths as a sign of the times. We read the fine print, and warn others. We clear our cache, deny mic access, and turn of location services. We refuse to be a datapoint.

Ewick and Silbey (1998) point out that legal consciousness is dynamic. The categories they put forward are not mutually exclusive—people relate to the law differently in different contexts and at different points in there lives. Similarly, most of us will find that, at times, we may inhabit all of these stances—before, with, and against the internet—even if our digital identity seems to resonate more closely with just one of these. When it comes to understanding our identity in the digital world, the key question may not be who am I, but how am I. The answer to this might just help us close the gap between our IRL selves and our digital lives.

–Dr. Maya Pagni Barak is an Assistant Professor of Criminology and Criminal Justice and an affiliate of Women’s & Gender Studies at the University of Michigan-Dearborn

(1) Fritsvold (2009) proposes adding a fourth category, under the law. People who find themselves under the law consider the law to be “the protector and defender of a social order that is fundamentally illegitimate” and that must be radically overthrown (Fritsvold 2009:799). Those of us who are under the internet think that while the againsts are headed in the right direction, the withs have been coopted and fallen victim to #falseconsciousness. We consider the internet a tool of the powerful and social media the opiate of the masses. We are hackers. We slide on and off the Grid, navigating the dark web and dealing in cryptocurrency. We are cyberpunks here to return the internet to its halcyon days of bottom-up little “d” democracy, or destroy it altogether.