The good, bad, and ugly of binary thinking

The good, bad, and ugly of binary thinking

Sometimes the best choice when you come to a fork in the road is to retreat, or even merge the two forks by taking one then going off road to the other! And yet binary thinking will force us to choose between the right or left fork, even if both forks suck standing alone. Only by understanding the perils of binary thinking can you protect against its destabilizing bipolar effects in conflict resolution.

First, the good. Binary logic is what makes many computer software programs run. The logic of going between “0” and “1” on streams of code is what gives direction to hardware. Not only that, but compact discs use the same logical geography to play music. Plus, in some cases, as Professor Steven Pinker points out in How the Mind Works or Malcolm Gladwell in Blink, binary logic helps us decide, often in split seconds, between: fight or flight in a dark alley, taking one fork in the ski slope or another, one moral decision as opposed to another in our relationships.

Second, the bad and ugly. The same logic that helps us make split second decisions in dark alleys also causes disaster in conflict resolution. In most but not all legal disputes I have handled, binary thinking keeps each side stuck in their black and white view of the law and facts, like the gun men pictured above. In most cases, both sides are right, and wrong, in different respects. (In others, there is a right, and a wrong, but that is quite rare.) As pointed out by Mr. John Kenneth Galbraith about the Myth of Consumer Sovereignty in The Affluent Society, rational decision making often gets irrational because consumers make decisions based on their perceived necessary choices — not their actual available choices.

The same goes with decision making in conflict resolution. Take negotiations between Democrats and Republicans. Labeling an idea “Republican” or “Democrat” can change an otherwise great idea in a split second into a horrible idea, depending on the listener’s prejudice. This is so even though each party may claim to have the same stated goal, such as less American unemployment. Rather than considering the idea with an open mind, the political listener shoves the idea into one pigeonhole or the other, even when the idea doesn’t fit into either hole, and then smashes it. Alternatively, the listener blasts the idea because it doesn’t fit into either hole. In so doing, yesterday’s distrust taints the new today. Thus, the circle of distrust is continued, as recounted in Politics of Distrust, which shows that, as of 2012, only 22% of Americans trust government.

While binary thinking can help us survive, it can, at other times, be deadly. Such thinking blinds us to innovative solutions available outside the binary system we desperately cling to. By considering these solutions, the two forks in the road can merge more often towards common goals.

The emperor still has no clothes!

The emperor still has no clothes!

Recently, a jury found Mr. Ross Ulbricht guilty of running the black market website Silk Road. Many observers claim that the government’s theory expanded liability for third parties like Mr. Ulbricht online. As I mention in a recent GizMoto interview, the government’s theory of liability wasn’t new, but “whether the government obtained the evidence that they wish to use to prove this narrative . . . in a lawful way consistent with the Fourth Amendment” is still up for debate.

On Silk Road, you could buy everything from cyanide, to marijuana, to, yes, some say hit men! The site was dubbed the Amazon of the black market. While diary entries from Mr. Ulbricht showed that he initially intended to launch the site so that he could sell mushrooms, the factual issue in the trial was whether he was the infamous Dread Pirate Roberts who continued to captain the site after it got up and running — and after Mr. Ulbricht supposedly bailed out.

Some have claimed that the government’s theory of liability “would expand legal liability for commerce in contraband online,” and that the outcome of the trial shows that “anonymity is dead.” Under this view, it is a slippery slope to hold Mr. Ulbricht liable for the conduct of people on Silk Road. That means all folks running websites have to be nannies who oversee all that is done on the site or risk criminal prosecution.

Maybe so. The Silk Road verdict makes it tougher to be a libertarian provider of a virtual platform where people can freely — and anonymously — transact. The freewheeling atmosphere on Silk Road was facilitated via the use of Bitcoin as the medium of payment. Some in the financial industry have sought similar anonymity with their “dark pool” methods of trading, where “the trading volume created by institutional orders . . . are unavailable to the public.” Dark pools, too, have come under legal scrutiny.

Contributory liability under copyright makes a third party — here Mr. Ulbricht — liable for infringements that occur under their control that they are aware of, or should be aware of. There is no intentional ostrich defense — “I chose not see or hear criminality!” — to such liability, nor is there such a defense to aiding and abetting violations of federal law. If Mr. Ulbricht was, in fact, Dread Pirate Roberts, then he intentionally facilitated the illegal transactions. In this respect, the case did not “expand legal liability for commerce in contraband online,” and so the emperor still has no clothes, contrary to what others say.

However, Silk Road did suggest new methods of potential government overreaching in the digital age. According to some pundits, the F.B.I. was mysteriously able to uncover the Silk Road servers supposedly via a software flaw on a site’s login page that, in turn, revealed an IP address. Supposedly, the IP address led the feds to an Iceland location where the server for Silk Road was located. Whether this cookie crumb trail created by the feds violated the Fourth Amendment is an issue that will likely be raised on appeal.

Regardless of the outcome of that appeal, Silk Road illustrates the tension between being able to conduct business in private online without the government unlawfully snooping, and society’s interest in regulating virtual transactions that have negative externalities — nasty effects — on all but the transacting parties.