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Category Archives: current events

NSA Prism Part III: Due Process and Presumed Guilty

Part I and Part II.

Though people have been quick to break out Orwell and Big Brother in response to NSA PRISM, legal scholar Daniel Solove “suggested a different metaphor to capture the problems: Franz Kafka’s The Trial, which depicts a bureaucracy with inscrutable purposes that uses people’s information to make important decisions about them, yet denies the people the ability to participate in how their information is used“ (quoted in Rebecca Rosen’s Atlantic piece).

This is to say that activities and acquaintances and phone calls and blog posts that seem harmless to us can be taken out of context, algorithmically processed in ways we don’t know about and can’t dispute, (indeed, since senators apparently skip briefings from the intelligence agencies, ways Congress doesn’t even know about and can’t dispute) and voila, we’re on the No-Fly list. (Something which, to be honest, I’ve considered as I’ve been doing this blogging.)

Jan Fernback made a similar point at Culture Digitally: “We have no knowledge of how governments and corporations are constructing our ‘data selves,’ and this fact militates against trust, civil liberties, and a general ethical sensibility. We have reason for suspicion when, in such a malevolent surveillance context, we have no assurance that data will not be abused.”

Even Supreme Court Justice Breyer has taken this stance in one of his opinions, which Wired quoted  as pointing out that it’s “difficult for anyone to know, in advance, just when a particular set of statements might later appear (to a prosecutor) to be relevant to some such investigation.”

Of course, as David Cardinal writes at ExtremeTech the claim is “that the act of logging data is not the same as actually looking at it.” That is, the federal government doesn’t have perfect surveillance of all things you do at all times; they only collect everything and then go back and check it if they have a reason to be suspicious.

Though Stanford Center for Internet and Society Director of Civil Liberties Jennifer Granick found the claim not to target unconvincing and wanted to know about monitoring,  I think the legal dodge of blanket surveillance is actually genius because it lets them claim that they don’t “target” OR “monitor” Americans without probable cause but still have total access to look at what they’ve logged at any point.

Solove went on to say that “the NSA program involves a massive database of information that individuals cannot access. Indeed, the very existence of the program was kept secret for years. This kind of information processing, which forbids people’s knowledge or involvement, resembles in some ways a kind of due process problem,” and that framing as due process caught my attention.

That is, the problem of PRISM may be best understood not solely against the 4th Amendment:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

but also as impinging on the 5th amendment:

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

(Full Bill of Rights at Archive.gov)

Posing this as a due process question could be the way to get some traction in light of the nonchalance about privacy discussed last week: The problem with NSA PRISM is that we are all being treated as guilty until proven innocent. This has been going on since 9/11, of course, with airport security being one highly visible iteration, but there’s a chance that this new level of awareness of just how much everyone is being treated as criminal without due process of law could be the straw.

Solove describes the stakes well: “Even if a person is doing nothing wrong, in a free society, that person shouldn’t have to justify every action that government officials might view as suspicious. A key component of freedom is not having to worry about how to explain oneself all the time.”

Crossing this line into blanket assumption of guilt is what animates the Stop Watching US petition, which says “the contents of communications of people both abroad and in the U.S. can be swept in without any suspicion of crime or association with a terrorist organization,” though they tie their concern to the 1st and 4th amendment and “citizens’ right to speak and associate anonymously, guard against unreasonable searches and seizures, and protect their right to privacy” without mentioning due process.

(That people feel due process has gone out the window is clear from the fact that RootsAction sent me a petition to President Obama “not to engage in any abduction or other foul play against Snowden,” ironic when the administration’s line on why they’re disappointed that Hong Kong let him leave is that they want there to be rule of law.)

Wired perhaps elaborates the worst-case-scenario best: “Police already abuse the immense power they have, but if everyone’s every action were being monitored, and everyone technically violates some obscure law at some time, then punishment becomes purely selective. Those in power will essentially have what they need to punish anyone they’d like, whenever they choose, as if there were no rules at all.”

Of course, black and Latino citizens have been living under presumed-guilty, surveilled-within-an inch-of-their-lives, selectively-punished conditions for decades: they’re more likely to get caught at things white folks also do and be punished more harshly for them, even as early as middle school (see Ann Ferguson’s Bad Boys). Muslim and Arab citizens have been living under it since 9/11.

David Simon is absolutely right to point out the hypocrisy that “when it’s time for all Americans to ante in with the same, exact legal intrusion to their privacy, the white folks, the middle-class, the affluent go righteously, batshit, Patrick-Henry quoting crazy” whereas those same people think that:

thousands of Baltimoreans, predominantly black, can have their data collected for weeks or months on end because they happened to be using a string of North Avenue payphones, because they have the geographic misfortune to live where they do.  And it’s the same thing when it’s tens of thousands of Baltimoreans, predominantly black, using a westside cell tower and having their phone data captured.  That’s cool, too.  That’s law and order, and constitutionally sound law and order, at that.

Rather than rolling out presumed-guilty to everyone, the revelation of NSA PRISM provides an argument for rolling it back altogether. Not being deprived of liberty without due process of law is fundamental. It’s in the constitution.

So it’s time to look hard at what we’re willing to accept in the name of security, to go back to ends and means again. And if we’re going to allow there to be surveillance of any magnitude, the question of due process seems like an excellent place to start

NSA PRISM, Part Two: Ends and Means

Last week, I suggested that the U.S. might benefit from seeking leaking as a useful tool to support democracy in a nontransparent age.

This week, rather than setting up the two as opposed, I want to begin from the premise that what the NSA’s PRISM surveillance and the leak that revealed it have in common is that they were undertaken with the belief that the ends justify the means.

First, under the logic of democratic transparency I described last time, it would seem clear that people had a right to know what was happening, but did the means justify that end? Leaker Edward Snowden obviously thought that it did. He claims that his “sole motive is to inform the public as to that which is done in their name and that which is done against them,” disregarding the means necessary to achieve it altogether as he maintains, “I know I have done nothing wrong” (Guardian).

(Jeremy Hammond, who hacked a private security firm to expose its manipulation of public opinion, said much the same thing)

The Atlantic’s Bruce Schneier also prioritizes the leak’s ends, actively encouraging further leaking: “I am asking for people to engage in illegal and dangerous behavior. Do it carefully and do it safely, but — and I am talking directly to you, person working on one of these secret and probably illegal programs — do it.”

Others, however, think that the ends don’t justify the means. This I think is where you get polling data that both say Snowden did the right thing and that he should be punished.

WikiLeaks documentary director Alex Gibney, interviewed in The Atlantic, makes a similar argument that both values the ends and  attaches consequences to the means with regard to leaker Bradley Manning: “you have to acknowledge that he broke an oath to the military, and we wouldn’t want a world, at least I wouldn’t want a world, in which every soldier leaked every bit of information that he or she had. Manning broke an oath and he’s actually pled guilty to it, and he’s willing to face the consequences.”

At the far end of the spectrum from Snowden’s complete focus on ends, Director of National Intelligence James Clapper (predictably) doesn’t even consider the possibility of value in the ends, contending that “Disclosing information about the specific methods the government uses to collect communications can obviously give our enemies a ‘playbook’ of how to avoid detection” (Washington Post)

There is also an ends vs. means question on the surveillance itself. It’s quite possible that people are actually being protected by this blanket surveillance. Maybe fifty plots have really been foiled.  Certainly, having people not blown up is an admirable end. But at what cost? A case could be made that the means are destroying the very freedoms they’re intended to secure.

My concern here is in the minority. There has been some significant nonchalance about these surveillance revelations, such that it seems people are ok with the surveillance means out of support for its ends. A Pew Research Center poll found a majority saying tracking phone data was acceptable. Daniel Solove’s Washington Post piece sought to dispel privacy myths like “Only people with something to hide should be concerned about their privacy.”

The NSA unconcern may seem like a startling abdication of privacy, but is actually a relatively prevalent attitude. As Alyson Leigh Young and Anabel Quan-Haase argued in their recent article on Facebook and privacy, people (undergrads, in their sample) are generally much less worried about institutional privacy issues like corporate or government surveillance than they are about social privacy (their mom or boss seeing their drunk party photos).

Jan Fernback, in a post at Culture Digitally, similarly argues that “when thinking about appropriate information flows, surveillance contexts, and notions of ethics and trust, we must distinguish the legal dimensions of privacy law from the social dimensions.”

Ultimately, the different things that are being evaluated against each other in this case may be operating in such different registers from each other that they’re incommensurable. As Fernback notes, “privacy opponents argue that we need surveillance to catch wrongdoers while privacy advocates argue that surveillance harms individuals. How do these contexts differ?  What good is being served? What interests are being weighed? Is trust being violated? What power imbalances are evident? What technical regimes are implicated? How is information being used?”

It’s this sort of calculus that has to be used to really parse the ends and the means. Under this view, then, one problem with surveillance as a means is that, as Moxie Marlinspike argues in Wired, “we won’t always know when we have something to hide.”

They quote one of Supreme Court Justice Breyer’s opinions describing “the complexity of modern federal criminal law, codified in several thousand sections of the United States Code and the virtually infinite variety of factual circumstances that might trigger an investigation into a possible violation of the law.” People don’t always know what’s illegal. Or, things previously legal may become illegal. (This invites the argument that “ignorance of the law is not an excuse,” but when laws are so voluminous and often nonsensical it’s hard to hold the line on that.)

Or, the opposite: things that were previously illegal may become legal, but—as Marlinspike points out—we can’t agitate to change those laws without being able to break them and see that they shouldn’t exist. The Wired piece uses the examples of marijuana legalization and same-sex marriage, and we can think of others, but if there was perfect surveillance, forget about any of it.

These means, that is, have many extenuating consequences that we have to balance against their ends. And, to circle back a bit to last week, that’s why there has to be transparency, so that we can work through what those consequences are and see whether the ends are justified, as much for the leaking as the surveillance itself. We simply can’t assess these programs unless we know how they work.

For the first time in this blog’s history, this topic has produced a three-parter. Stay tuned next week for a consideration of due process. 

The Right to Leak and Share Docs?

Nothing useful rhymes with arms; I checked.

This week’s post is of course about the revelation of the United States National Security Agency’s PRISM program. But more particularly, it was inspired by two things.

leak

First, a tweet (which I got via @kouredios):

Second, I got a petition from feminist organization UltraViolet via the clicktivism platform Change.org entitled “Hacker Who Helped Expose Steubenville Could Get More Prison Time Than The 2 Convicted Rapists.”

Put alongside the DemandProgress.org/RootsAction.org petition  in support of PRISM leaker Edward Snowden, who is apparently “in hiding on the other side of the world because he rightfully fears for his safety — and he says he never expects to see home again,” this all got me thinking.

Both Steubenville hacker Deric Lostutter and Snowden took action to expose wrongdoing, and they are being criminalized for doing so.

The idea that exposing malfeasance is a crime has gotten a great deal of traction in the national security conversation since at least the Bradley Manning/Wikileaks moment. Both The Atlantic and The Guardian characterize the Obama Administration’s crackdown on whistleblowers as unprecedented.

The statement from Director of National Intelligence James Clapper that “The unauthorized disclosure of information about this important and entirely legal program is reprehensible and risks important protections for the security of Americans” certainly participates in this logic of whistleblowing as crime.

A second petition for Lostutter from Credo Action notes that he “was recently targeted by an aggressive FBI raid for his participation in bringing that evidence to light. A dozen agents with weapons confiscated computers belonging to Lostutter, his girlfriend, and his brother, while putting him in handcuffs outside his home,” and certainly the disproportionate and public response looks like a warning to other potential well-intentioned hackers as much as anything.

However, despite this stance on the part of the administration—and members of Congress (Speaker of the House John Boehner called Snowden a traitor, according to RootsAction)—there are important reasons not to see whistleblowing as a crime but more in line with McDonald’s framing above as a vital way to keep the government in line. Certainly one mitigating factor against calling the release of classified information criminal or treacherous is that “the government has been systematically over-classifying information since 9/11” (Rebecca Rosen in The Atlantic)

It’s clear that this is in fact “a secrecy binge,” as Bruce Schneier framed it in The Atlantic, rather than a legitimate act of national security from the fact that “we learn, again and again, that our government regularly classifies things not because they need to be secret, but because their release would be embarrassing.” It seems obvious that exposing things that shouldn’t have been secret shouldn’t be a crime.

However, even if the secrecy serves a purpose other than humiliation-avoidance, there may still be a case to be made for releasing it under the right to know inherent to a democracy. Schneier again: “democracy requires an informed citizenry in order to function properly, and transparency and accountability are essential parts of that.”

Jennifer Granick, Director of Civil Liberties at the Stanford Center for Internet and Society, wrote a blog post that called for 

public hearings on this scandal so that the American people can find out exactly what our government is doing. Congress should convene something like the Church Commission, which investigated illegal surveillance of civil rights and anti-war groups, to learn how the government conducts secret surveillance and what it does, if anything, to protect the privacy of American citizens.

This is particularly vital in light of what appear to be efforts precisely to avoid oversight. People would, Daniel Solove argues in the Washington Post, “be fine giving up some privacy as long as appropriate controls, limitations, oversight and accountability mechanisms were in place.”

However, “we know that the NSA has many domestic-surveillance and data-mining programs with codenames like Trailblazer, Stellar Wind, and Ragtime — deliberately using different codenames for similar programs to stymie oversight and conceal what’s really going on” (Schneier).

It may well be “entirely legal,” as Clapper says, but we don’t really have any way of knowing that with the information available to us. And even if it is legal, I don’t think that this is what people thought they were signing up for in the post-9/11 surveillance-approval frenzy. As Mike Masnick put it at Techdirt, “those in power keeping screaming “terrorists!” to get Congress to pass these laws, and then everyone’s shocked (shocked!) when the government goes and does what Congress and the courts have specifically allowed.”

However, Masnick goes on, “the ‘good news’ in all of this (if there is any good news) is that if it’s true that everything that was done didn’t actually violate the law, then we just need to fix the laws” if we think this isn’t legitimate. But we cannot do that without knowing how the laws are being interpreted currently.

It is this right to know, vital to democracy, that leads to McDonald’s desire in the above-quoted tweet to frame leaking in terms of the more well-known American ideology about how democracy is preserved, the second amendment. This is actually a very interesting parallel given that both anti-surveillance and pro-gun partisans deploy the Benjamin Franklin quote “they who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”

The difference between the two positions is in believing in government process. If knowledge is enough, public opinion can rein in government excess or oversteppers can be voted out of office. The pro-gun position seems to foresee the full dystopian scenario requiring force of arms. Even in their distrust, lefties trust the government more.

The absurdity of fighting the world’s most powerful military with civilian-grade weapons, even assault rifles, notwithstanding, I don’t think we’re likely to replace gun rights with leaking rights—cold, dead hands and all that.

But I think the right to leak—which Schneier framed as a duty to leak—is an excellent twenty-first century supplement to push back on government overreach.

Next week, because apparently two-parters are a thing I do now, ends vs. means in PRISM and leaking.

Kindle Worlds, Part 1: The Economic Raw Deal

On May 22, Amazon announced “Kindle Worlds,” a New Publishing Model for Authors Inspired to Write Fan Fiction, and my corner of the fan-studies internet exploded. Reading (and having) those conversations and looking at the big picture, I come to two conclusions: economically, it’s a bad deal; culturally, it’s incompatible with my generation’s understanding of what fandom is and how fan fiction works. Since I got to a full-length blog on just point one, that’s what I’ll tackle this week.

But first, an acknowledgement that, as Francesca Coppa noted in an email exchange in which I participated, “sadly, it’s the best offer yet,” since some in the industry “want to monetize vidding and other fanwork on YouTube and take the all of the profits entirely.” By comparison to this, then, Kindle Worlds looks pretty good, an example to say “look, you really have to cut in the fans if you’ve going to do something like this” (Coppa). I think it’s important to both recognize that this is an improvement and articulate what we like about it (which many are doing) and also articulate what about it is still troublesome (which I’m doing) in order to not let that turn into taking whatever we can get.

Coppa’s point above, that some in the industry feel entitled to the entirety of the income from remix uses of its intellectual property, shows why the analytic lens of labor is so vital. On one hand, that is, it shows why we still need the labor theory of value, because the frequent assumption on the part of industry is that all the value comes from the “raw” material of the media that’s used in remix, rather than something being added by the labor the fan puts into it.

The labor theory of value lets us see the work of value extraction in Amazon’s initiative; they see a thing that could have its value extracted but isn’t being

meskextracted currently, and so they’re extending extraction to it. Hence Melanie E.S. Kohnen’s point:

(Embrace is always enclosure! The industry’s arms are made of fences!)

We also need a labor framework because what Amazon is offering is, the consensus contends, work for hire (as argued by Livia Penn, Karen Hellekson, and John Scalzi). And it’s work for hire on pretty bad terms.

In the Kindle Worlds framework, writers have no control and have to take what they can get. As Nele Noppe pointed out at the Fanhackers Tumblr,

while fic writers will get some money, they have zero control over how much they might want to charge or how much of a cut they deserve, and no options to negotiate. Amazon can organize its business the way it pleases, of course. But this “you will take what we offer you or nothing” approach may offer a big clue to how Amazon believes the rights of all parties should be balanced out when fic writers and copyright holders try to share income from fanworks.

Penn further points out that, by paying based on net rather than gross profit, fan writers are left open to being billed into oblivion: of a thousand-dollar gross, “a hundred dollars to pay their slush pile department, another a hundred dollars goes to their copyediting department, two hundred dollars to their market research department, another two hundred to their advertising department, and three hundred ninety to the legal department.”

It might seem ridiculous or paranoid to suggest this, but this is well documented in the music industry (Techdirt, Courtney Love at Salon), and Penn gives the example that “the actor who played Darth Vader has NEVER been paid residuals for ‘Return of the Jedi,’ because those come out of… you guessed it, the net profits, and the *fifteenth highest grossing film ever* has NOT made a net profit yet.”

The Amazon Worlds contract, at least as described in the press release, is set up in a way that exploits fan writers’ relative weakness compared to massive companies and the likelihood of their ignorance of these kinds of business practices.

Moreover, Amazon’s offer is a bad deal because publishing this way removes the writer’s control over further use. They (either Amazon or the licensor, it’s unclear) can republish the story itself in anthologies or translations (Noppe, Scalzi, Penn).

The release of all copyright in the contract also seems to suggest that They (whoever They are) can take the ideas in it for other uses; in Penn’s sharp summation, “they are *not* going to pay you more if they take one of your original characters and make them the star of a spin-off web series that then earns them a million billion dollars” (see also Noppe, Scalzi).

(However, this may not be the case; established author Barbra Annino, tapped to write one of the pilot novels, stated that under her contract “if I should create a character within this world, I am free to use that character elsewhere in my own work” and that she understood this to be how the other contracts would work as well.)

The arrangement also quite likely constrains further creativity from its writers, either though prohibiting offering the story for free elsewhere (Noppe) or opening up authors to being sued for copying themselves through writing something too similar later on (Penn).

These are, as both Hellekson and Scalzi (themselves professionals) and legal scholar Rebecca Tushnet point out, worse terms than writers usually get—indeed, as Hellekson puts it, they’re “terms that professional writers would be inclined to reject.”

This is particularly interesting given that (as Coppa reminded me) other literary second-comers didn’t have to give up this much control OR money: Alice Randall’s The Wind Done Gone didn’t need to license Gone With The Wind; Lo’s Diary reworked Lolita with a 50-50 royalty split with Nabokov’s estate. The difference between “real” writer and fan writer is nontrivial, then, and related again to both not seeing fan work as work that adds value and exploiting (presumed) fan weakness/ignorance.

Both Hellekson and Scalzi gesture toward the benefits of unionization to protect from just such abuses, Hellekson pointing to the Freelancers’ Union and Scalzi to the Writer’s Guild of America as the union for “official media tie-in writers and script writers.”

And then there are a set of non-labor legal issues. One thing that several fan scholars found quite objectionable was the seeming implication that fan fiction required licensing rather than being fair use (Suzanne Scott, Kohnen, Noppe; this is a trouble with licensing generally, see the Brennan Center for Justice’s Will Fair Use Survive?: Free Expression in the Age of Copyright Control [pdf]).

For writing fan fiction, licenses are almost certainly not required, but for selling it they may be, since one of the four factors in Fair Use includes whether the use is commercial. However, commercial uses have sometimes been judged fair (Alice Randall’s The Wind Done Gone prevailed over Margaret Mitchell’s estate, 2LiveCrew was able to sample Roy Orbison’s Pretty Woman) and noncommercial ones sometimes unfair.

The real issue is that precedent is unclear because cases like fan fiction, where the relationship to the remixed text is not antagonistic, haven’t really been argued before courts. Fans tend not to have the financial wherewithal for such fights; as Henry Jenkins put it in Convergence Culture, “someone who stands to lose their home or their kid’s college fund by going head-to-head with studio attorneys is apt to fold” (p. 131). There’s also the factor of having to fight with the owners of something they love, an affectively and ethically gray area for many fans.

This uncertainty both in the law itself and on the part of fans in knowing the lay of the land (weakness and ignorance again!) works in industry’s favor. They, as Coppa pointed out, know the law quite well and know when things are likely fair use, but they also know they’re likely to get away with insisting on their ownership of fan products.

These questions of labor and compensation and ownership fairness, then, mean that deciding whether publishing with Kindle Worlds is worth doing is complicated and requires having a lot of information and background knowledge that many people don’t.  As Scalzi put it, “the thing that can be said for it is that it’s a better deal than you would otherwise get for writing fan fiction, i.e., no deal at all and possibly having to deal with a cranky rightsholder angry that you kids are playing in their yard. Is that enough for you?”

Or Penn:

work for hire is bullshit– well, *unless* you don’t actually deeply care about the stories or characters or other creative work, and just want a paycheck because you have kids to feed. If it’s just a job, then not owning your creative work is fine. (But if that’s the case, you want to make sure you are being compensated fairly, and as I said in point one, “you get nothing but a percentage of the *potential* net from the ebook sales and NOTHING ELSE” is NOT a case of you being compensated fairly.)

Certainly, I think we should take seriously the fact that part of the ease of exploiting this creative labor is that fandom and certain fan practices are still stigmatized. VentureBeat, in its news coverage of the announcement, couldn’t resist referring to fanfiction as “a passionate hobby that earns you ridicule from friends and co-workers.” Fast Company calls fanfic a “parallel universe.” (Obligatory shameless self-promo for my article on fandom and stigma.)

In the end, as I suggested in my SCMS presentation earlier this year, fans’ capacity to consent to such arrangements is uncertain because of vastly unequal power, limited choice, and lack of knowledge. Meaningful consent isn’t impossible, but it does require treading very carefully, and I worry that excitement and the seductions of marketing-speak may render such care difficult to come by.

Stay tuned for Part 2 next week, “The End of Fandom as we know it?”

Angelina Jolie and the Rules of Embodiment

I woke up last Tuesday morning, as many did, to Angelina Jolie’s New York Times op-ed, which got to me first via @IMKristenBell.

I do, as most seem to, believe that both undergoing the preventive surgery and making the announcement took a lot of courage on Jolie’s part. It was undoubtedly painful, plus probably scary to have currently healthy tissue removed.

There’s also the factor of, as Anne Helen Petersen put it, “Star Famous For Boobs Has Double Mastectomy” (which I got via @bertha_c). Jolie’s breasts were somewhat necessary for her job in a way that they aren’t for most people. (I wonder: Did she have them insured, like Tina Turner’s legs?)

But, while not disputing the personal difficulty involved, I want to look at this structurally, as is my wont.

Alongside that personal difficulty, that is, Jolie has some significant advantages. She is definitely aware of some of the privilege she has, noting that “The cost of testing for BRCA1 and BRCA2, at more than $3,000 in the United States, remains an obstacle for many women.” (Others have noted this awareness: Shakesville, via @kouredios; the Guardian, via @bertha_c again; Gina Neff over at Culture Digitally)

But Jolie’s statement that “On a personal note, I do not feel any less of a woman. I feel empowered that I made a strong choice that in no way diminishes my femininity” pointed to some other forms of privilege she didn’t discuss, and of which she may not be aware.

Biology declared that Jolie’s breasts were “time bombs” (I saw this phrase in a headline about someone else’s breast cancer decision-making but I can’t find it again now to give credit). Medicine had the capacity to remove them. And cosmetic surgery to make her body look the way she felt it should was available to her.

Jolie had access to those procedures because she’s very wealthy, obviously, but what’s important to me here is a less tangible form of access. She had access to these procedures because it makes sense that a ciswoman would be able to access surgically-produced breasts.

A transwoman who had the same conviction that her body looked correct with breasts would, even today, be considered somewhere between mentally ill (still in the DSM 5) and dangerous (the “transwomen are men pretending to be women so they can be sexual predators in locker rooms” narrative; see, when it’s out, Laurel Westbrook and Kristen Schilt‘s forthcoming piece “Doing Gender, Determining Gender: Transgender People, Gender Panics, and the Maintenance of the Sex/Gender/Sexuality System,” a followup to their award-winning 2009 article Doing Gender, Doing Heteronormativity: Gender Normals, Transgender People, and the Social Maintenance of Heterosexuality).

In both cases, there are medico-biological-scientific-y reasons for why one’s body is out of alignment with one’s sense of self. But one set of reasons is seen as more valid than the other. The exact same body-shaping procedures that for transfolks are often framed as “messing with nature” are readily available to people who have a different gender identity—we can think also here about the treatment of gynecomastia in bioboys being considered perfectly legitimate as a way to prevent mental distress, but the desire for the same breast tissue removal in transmen is a sign of mental distress.

What does this say, then, about the rules of embodiment? We believe that bodies “naturally” do two (and only two) things, and never the twain, and we’re prepared to surgically intervene to make sure it happens. That’s not exactly a new insight—it matches what Anne Fausto-Sterling has argued about intersex babies. However, I don’t  know that it has been extended to questions of breasts rather than just genitals before, and I’d add that we’re also prepared to deny surgical intervention, depending.

But I want to push a little harder on it.

Jolie’s comments that she doesn’t “feel any less of a woman” and that it “in no way diminishes my femininity” are surely for the benefit of those who feel like substandard women after losing one or both breasts to cancer.  That is a real experience that is powerful to the people who have it. But I want to ask where such a feeling of inadequacy comes from.

Time after time, the commentators have marveled that Jolie resisted the dictates of beauty and sex appeal:

It’s remarkable because Angelina Jolie is generally regarded as one of the most beautiful women in a world that profoundly values beauty and defines women’s worth by their sex appeal, and she is telling women to value their health. (Shakesville)

That breasts do not exist just to turn on other people will not come as a surprise to any sentient adult human being. Nor, it should go without saying but sadly does not, do breasts make the woman. But brutal, mature reality does not generally have much of a place in the fantasy land where the myths of celebrities and public perception intermix. (The Guardian)

But she doesn’t need them to be beautiful, or to be loved, or to maintain that stardom.  Women have been hearing this message for years, but with this editorial, Jolie not only makes it available to men, but proves it through the very existence of her resilient, still sexual body. (Petersen)

But what all of these comments about rejecting beauty standards miss is that Jolie got her breasts back.

Maybe not “hers” in the traditional sense, but visually, which is all anyone cared about in the first place (as problematic as that is, and in which she surely intervened by emphasizing health). The full trajectory does not suggest that “she doesn’t need them to be beautiful, or to be loved, or to maintain that stardom” or refute the logic “that profoundly values beauty and defines women’s worth by their sex appeal.”

She did not go on with her career as a breast-less woman. If anything, this event actually suggests that the breasts do make the woman, however it is that one comes by them, much like breast removal is so key to making “proper” men. (Also here, the challenges with talking about breast cancer in men.)

This is not to say that I think she shouldn’t have had reconstruction, not least because I’m not in the habit of prescribing what other people do with their own bodies. Also, it falls under “sane response to an insane system.” But I will wager it never occurred to anyone to even consider not doing reconstruction. A breast-less woman is virtually incomprehensible to us. And certainly not eligible to be sexy.

And that rule of embodiment, the tight equation of “breasts” and “woman,” is one that we really need to take a hard look at.

It points to a situation in which we have loaded a whole lot of meaning onto bodies. The general belief, that is, is that if you feel X way, you must be Y thing, and your body must look like Z.

Now, I am probably the most anti-identitarian person on the planet. I am deeply suspicious of the move from X to Y in the above formulation, and generally think identity is a trap. But I think we can leave that aside in this case, because we’re talking about embodiment in relation to already-established identities—Jolie as woman and our hypothetical transfolks (who are themselves a subset of all the ways one might identify as trans).

Ultimately, I really don’t think that Jolie’s case and the conversations occurring around it are cause for celebration that we’ve thrown off the yoke of oppressive standards of embodiment and the reduction of people to their bodies. In fact, I think it is more firmly settled on our collective shoulders than ever.