By: Dr. Ken Broda Bahm –
You may not have heard the phrase “filter bubble,” but it refers to an internet phenomena, as well as to some basic psychology on how we receive and process information. More fully explained in the video clip below, Eli Pariser coined the phrase to refer to the individual separation (that is the ‘bubble’ part) that occurs when the information that we read and think about is pre-screened (that is the ‘filter’ part) with and without our knowledge, in the name of customization. Yes, that is what the internet now does: from news sites to search engines, we aren’t reading from a common text, but are instead getting the information that an online algorithm thinks we want to see.
The reality of the increasing personalization of our information diet has two implications for the modern jury. The broad implication is that jurors who spend time online now have a powerful technology that is amplifying and extending the age-old human tendency toward selective attention. This means that individual jurors may have a harder time dealing with perspectives other than their own. The broader implication is for the jury system itself. As the concept of “common knowledge” is increasingly fragmented and personalized, the notion of a “public sphere” that serves as a support for both participative democracy and the jury system, is becoming less and less a reality until, in Eli Pariser’s language, we are essentially in a “web of one.” The ultimate message for litigators is the reminder that even when common ground is in short supply, persuasion depends on it.
Before getting back to the jury, let me explain a little bit more about what the “filter bubble” is. Because you are reading a legal blog, chances are good that you spend a fair amount of time on the internet. And we are tempted to see the internet as a common pool that gives equal access to everyone with a computer and a connection. But today’s internet is quite a bit fancier than that, in a way that makes the “world wide web” a little more narrow. Instead of just providing on-ramps to commonly viewed pages, modern mass readership sites tend to use mathematical formulas and personal data to create an individualized experience for each person. In other words, if you were to Google the phrase “litigation persuasion,” you would end up getting a different set of hits than I would. Why? Because the Google company takes into account around 57 different variables that it knows or surmises about you: where you live, what kind of computer you are using, your browser choice, etc. Taking that into account, it delivers the hits that it thinks you would most want to see. And it isn’t just Google, but other news and opinion sites, and just about anything that attracts mass readership on the web. And given the expanding amount of time people spend on line, that is driving the public habits that in turn will shape the characteristics of tomorrow’s jury.
Eli Pariser explains the problem in this clip from this year’s TED Conference.
The focus of Mr. Pariser’s talk should be interesting (and troubling) to anyone who uses the internet, but is also vital to anyone who needs to persuade the public — like litigators. We already know that it is a basic tendency to selectively listen, and to “preferentially process” the information that jibes with our existing beliefs (e.g., Astheimer & Sanders, 2009). Ideally, the resources of mass media should work to challenge those human limits. That is, we should be able to sometimes watch the news and realize that reality doesn’t match our perceptions. But what happens when the news itself is geared to match our own preferences? Instead of watching the news and then forming an opinion, you can get the news already packaged as an opinion (e.g., Fox or MSNBC). As we increasingly get that information online, then the customization is taken many steps further. As a result, jurors may simply not be used to listening to, or understanding, those who see the world differently. And that has some very broad implications for the jury system itself. Just as the “boutique perception” of the individual’s bubble is at war with idea of participative democracy (shared goals, common understandings, etc.), so too is it at odds with many of the assumptions of the jury system. Legal standards like “reasonable care” presume a shared understanding, and if that disintegrates, the verdict is just reduced to personal preference. More plainly, our current sources of information may make it harder in the future for juries to find common understanding.
The question of what exactly we do about this is best left for other quarters, or for Eli Pariser’s book. But I do want to leave litigators with one big implication:
Never assume that what makes sense to you will therefore make sense to any reasonable person. Intellectually, everyone is a foreigner living on a different island and perceiving, speaking, and understanding in a slightly different way. But even as common ground shrinks, the best route to persuasion remains identification: the ability to find and speak to what is shared between you and your audience.
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Related Posts:
- Conduct a Social Media Analysis on Your Potential Jurors (But Beware of False Expectations of Privacy)
- Take a Discovery Lesson From ‘The Social Network’
- Convert Your Conspiracy Theorists: Research Shows it Can Be Done
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Astheimer LB, & Sanders LD (2009). Listeners modulate temporally selective attention during natural speech processing. Biological psychology, 80(1), 23-34 PMID: 18395316
Eli Pariser (2011). The Filter Bubble: What the Internet Is Hiding from You Penguin Press HC
Photo Credit: chefranden, Flickr Creative Commons