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Should You Be Able to Sue the Government That Nudged You?
"Nudge" policies are spreading across the globe because they supposedly offer a less expensive and more effective way to get people to make the "right" decisions. In the original formulation, such decisions are defined as those that people would like to have made, had they not been hobbled and blinkered at the time by irresistible irrationality.

"Nudge" policies are spreading across the globe because they supposedly offer a less expensive and more effective way to get people to make the "right" decisions. In the original formulation, such decisions are defined as those that people would like to have made, had they not been hobbled and blinkered at the time by irresistible irrationality.
As practiced by governments, non-profits and companies, though, the ideal is not always respected, and supposedly "nudgey" policies are often justified as benefitting society as a whole. Critics of the nudge approach often ask how the nudge squads can be so sure that they know what people would want if they were in their right mind, or even what is best for any individual, or for society. Experts, after all, often make mistakes. A recent conversation along those lines got me to wondering: If a citizen feels she has been hurt by a decision that she was "nudged" to make, should she be able to sue the nudgers for damages?
To make the question specific, let's take one of the most famous examples of a beneficial nudge: a widespread shift in the paperwork that new employees confront when dealing with their companies' retirement plans. For decades since the first 401(k) plans were instituted in the 1980s in the United States, employees had to fill out forms and wade through various choices in order to take part. To encourage more people to save for retirement via these plans, policies (and laws) were changed to shift the bureaucratic chores onto those who chose not to participate. This simple switch from "opt in" to "opt-out" paperwork greatly increased participation in 401(k) plans.
In the 2008 crisis, those 401(k) plans lost about a quarter of their value. Suppose then, that someone who took that pension bath were to sue the employer, or government, that nudged her into trusting her retirement to the stock market. I would have been better off spending the money on a nice car and fine dining, she argues. You must compensate me.
What would be the defense? No doubt one line would attack the claim that the nudge caused our hypothetical employee to invest in the plan. After all, there are many good reasons to save for retirement. And decisions are complex. Who is to say that it was the nudge, and not other considerations, that made the employee choose? It is very hard to establish a causal line from an influence to an individual's decision. Even glowing reports of success for nudge policies are based on population reasoning. Organ donation in Austria, which presumes people's consent, is nearly universal, while the percentage of the population that agrees in Germany is only 12 percent (because Germany doesn't presume consent, and therefore requires organ donors to take extra thought and trouble to sign up). From these kinds of statistics, it stands to reason that moving from "opt-in" to "opt-out" in organ donation policy will change participation rates. But it doesn't let you predict that any particular Hans or Beata will agree. It's hard to translate a general influence into a chain of causes that affected one person's life.
A second possible defense might be that companies, and policymakers, cannot be blamed for using a consensus of certified expert judgment to make policy. A subsequent change in expert opinion can't be held against the bureaucrat who relied on that opinion when it was certified as sound. This is a logical defense, but there is something troubling about it being used in the context of nudge policies. The reason? Nudges are supposed to be unobtrusive. Both the retirement and organ-donation examples I've cited involved changes in "choice architecture" to gently impel people toward the "right" decision.
This lack of explicitness is a distinct contrast to the blunderbuss tools of pre-nudge policymakers, with their taxes, fines and penalties for undesirable behavior and their subsidies, tax credits and other incentives for desired actions. Consider two ways a company tells you to watch your weight. One involves imposing a higher health insurance premium on you for being obese. This makes you very aware that the company wants to impose a cost for your lifestyle choices. But the second method involves altering the "choice architecture" of your workplace, so that the elevators aren't as conveniently located as the stairs, where you see posters about how everyone knows the stairs are good for you.
Confronted by Method #1, you know that some entity is attempting to influence you, and it is a simple matter to find out its rationale—to check the experts on whom it relies. But Method #2 is unobtrusive by design. If the "nudge" works correctly, you can't evaluate the attempt to influence you, because you aren't aware of it. How can you then research and critique the expert opinion that is being used to change your actions? I suppose that there is not, and should not be, a legal difference between an "experts-told-us" defense of Method 1 and Method 2. But politically there is a big difference between, one, relying on expert advice to convey an explicity message to citizens and, two, relying on expert advice to manipulate those citizens outside their awareness.
Can any readers think of other possible defenses to a lawsuit claiming that a nudge was harmful? I'd be interested to know. (And, of course, if anyone knows of an actual case, I'd very much like to hear about it.) For the moment, I am struck by this: To the extent that these defenses are correct—both "you can't prove our nudge made you do it" and "the experts told us this would be best, before we learned they were wrong"—they are also arguments against implementing nudge policies in the first place. What is the use of a policy that is supposed to influence individual behavior, if you can't prove it changed any individual? And how can a democratic electorate evaluate and challenge expert opinion if it isn't aware that expert opinion has been engaged?
Follow me on Twitter: @davidberreby
‘Designer baby’ book trilogy explores the moral dilemmas humans may soon create
How would the ability to genetically customize children change society? Sci-fi author Eugene Clark explores the future on our horizon in Volume I of the "Genetic Pressure" series.
- A new sci-fi book series called "Genetic Pressure" explores the scientific and moral implications of a world with a burgeoning designer baby industry.
- It's currently illegal to implant genetically edited human embryos in most nations, but designer babies may someday become widespread.
- While gene-editing technology could help humans eliminate genetic diseases, some in the scientific community fear it may also usher in a new era of eugenics.
Tribalism and discrimination
<p>One question the "Genetic Pressure" series explores: What would tribalism and discrimination look like in a world with designer babies? As designer babies grow up, they could be noticeably different from other people, potentially being smarter, more attractive and healthier. This could breed resentment between the groups—as it does in the series.</p><p>"[Designer babies] slowly find that 'everyone else,' and even their own parents, becomes less and less tolerable," author Eugene Clark told Big Think. "Meanwhile, everyone else slowly feels threatened by the designer babies."</p><p>For example, one character in the series who was born a designer baby faces discrimination and harassment from "normal people"—they call her "soulless" and say she was "made in a factory," a "consumer product." </p><p>Would such divisions emerge in the real world? The answer may depend on who's able to afford designer baby services. If it's only the ultra-wealthy, then it's easy to imagine how being a designer baby could be seen by society as a kind of hyper-privilege, which designer babies would have to reckon with. </p><p>Even if people from all socioeconomic backgrounds can someday afford designer babies, people born designer babies may struggle with tough existential questions: Can they ever take full credit for things they achieve, or were they born with an unfair advantage? To what extent should they spend their lives helping the less fortunate? </p>Sexuality dilemmas
<p>Sexuality presents another set of thorny questions. If a designer baby industry someday allows people to optimize humans for attractiveness, designer babies could grow up to find themselves surrounded by ultra-attractive people. That may not sound like a big problem.</p><p>But consider that, if designer babies someday become the standard way to have children, there'd necessarily be a years-long gap in which only some people are having designer babies. Meanwhile, the rest of society would be having children the old-fashioned way. So, in terms of attractiveness, society could see increasingly apparent disparities in physical appearances between the two groups. "Normal people" could begin to seem increasingly ugly.</p><p>But ultra-attractive people who were born designer babies could face problems, too. One could be the loss of body image. </p><p>When designer babies grow up in the "Genetic Pressure" series, men look like all the other men, and women look like all the other women. This homogeneity of physical appearance occurs because parents of designer babies start following trends, all choosing similar traits for their children: tall, athletic build, olive skin, etc. </p><p>Sure, facial traits remain relatively unique, but everyone's more or less equally attractive. And this causes strange changes to sexual preferences.</p><p>"In a society of sexual equals, they start looking for other differentiators," he said, noting that violet-colored eyes become a rare trait that genetically engineered humans find especially attractive in the series.</p><p>But what about sexual relationships between genetically engineered humans and "normal" people? In the "Genetic Pressure" series, many "normal" people want to have kids with (or at least have sex with) genetically engineered humans. But a minority of engineered humans oppose breeding with "normal" people, and this leads to an ideology that considers engineered humans to be racially supreme. </p>Regulating designer babies
<p>On a policy level, there are many open questions about how governments might legislate a world with designer babies. But it's not totally new territory, considering the West's dark history of eugenics experiments.</p><p>In the 20th century, the U.S. conducted multiple eugenics programs, including immigration restrictions based on genetic inferiority and forced sterilizations. In 1927, for example, the Supreme Court ruled that forcibly sterilizing the mentally handicapped didn't violate the Constitution. Supreme Court Justice Oliver Wendall Holmes wrote, "… three generations of imbeciles are enough." </p><p>After the Holocaust, eugenics programs became increasingly taboo and regulated in the U.S. (though some states continued forced sterilizations <a href="https://www.uvm.edu/~lkaelber/eugenics/" target="_blank">into the 1970s</a>). In recent years, some policymakers and scientists have expressed concerns about how gene-editing technologies could reanimate the eugenics nightmares of the 20th century. </p><p>Currently, the U.S. doesn't explicitly ban human germline genetic editing on the federal level, but a combination of laws effectively render it <a href="https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa006/5841599#204481018" target="_blank" rel="noopener noreferrer">illegal to implant a genetically modified embryo</a>. Part of the reason is that scientists still aren't sure of the unintended consequences of new gene-editing technologies. </p><p>But there are also concerns that these technologies could usher in a new era of eugenics. After all, the function of a designer baby industry, like the one in the "Genetic Pressure" series, wouldn't necessarily be limited to eliminating genetic diseases; it could also work to increase the occurrence of "desirable" traits. </p><p>If the industry did that, it'd effectively signal that the <em>opposites of those traits are undesirable. </em>As the International Bioethics Committee <a href="https://academic.oup.com/jlb/advance-article/doi/10.1093/jlb/lsaa006/5841599#204481018" target="_blank" rel="noopener noreferrer">wrote</a>, this would "jeopardize the inherent and therefore equal dignity of all human beings and renew eugenics, disguised as the fulfillment of the wish for a better, improved life."</p><p><em>"Genetic Pressure Volume I: Baby Steps"</em><em> by Eugene Clark is <a href="http://bigth.ink/38VhJn3" target="_blank">available now.</a></em></p>Octopus-like creatures inhabit Jupiter’s moon, claims space scientist
A leading British space scientist thinks there is life under the ice sheets of Europa.
Jupiter's moon Europa has a huge ocean beneath its sheets of ice.
- A British scientist named Professor Monica Grady recently came out in support of extraterrestrial life on Europa.
- Europa, the sixth largest moon in the solar system, may have favorable conditions for life under its miles of ice.
- The moon is one of Jupiter's 79.
Neil deGrasse Tyson wants to go ice fishing on Europa
<div class="rm-shortcode" data-media_id="GLGsRX7e" data-player_id="FvQKszTI" data-rm-shortcode-id="f4790eb8f0515e036b24c4195299df28"> <div id="botr_GLGsRX7e_FvQKszTI_div" class="jwplayer-media" data-jwplayer-video-src="https://content.jwplatform.com/players/GLGsRX7e-FvQKszTI.js"> <img src="https://cdn.jwplayer.com/thumbs/GLGsRX7e-1920.jpg" class="jwplayer-media-preview" /> </div> <script src="https://content.jwplatform.com/players/GLGsRX7e-FvQKszTI.js"></script> </div>Water Vapor Above Europa’s Surface Deteced for First Time
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="9c4abc8473e1b89170cc8941beeb1f2d"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/WQ-E1lnSOzc?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>Lair of giant predator worms from 20 million years ago found
Scientists discover burrows of giant predator worms that lived on the seafloor 20 million years ago.
Bobbit worm (Eunice aphroditois).
- Scientists in Taiwan find the lair of giant predator worms that inhabited the seafloor 20 million years ago.
- The worm is possibly related to the modern bobbit worm (Eunice aphroditois).
- The creatures can reach several meters in length and famously ambush their pray.
A three-dimensional model of the feeding behavior of Bobbit worms and the proposed formation of Pennichnus formosae.
Credit: Scientific Reports
Beware the Bobbit Worm!
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="1f9918e77851242c91382369581d3aac"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/_As1pHhyDHY?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span>FOSTA-SESTA: Have controversial sex trafficking acts done more harm than good?
The idea behind the law was simple: make it more difficult for online sex traffickers to find victims.
Has FOSTA-SESTA really lived up to it's promise of protecting sex trafficking victims - or has it made them easier to target?
- SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) started as two separate bills that were both created with a singular goal: curb online sex trafficking. They were signed into law by former President Trump in 2018.
- The implementation of this law in America has left an international impact, as websites attempt to protect themselves from liability by closing down the sections of their sites that sex workers use to arrange safe meetings with clientele.
- While supporters of this bill have framed FOSTA-SESTA as a vital tool that could prevent sex trafficking and allow sex trafficking survivors to sue those websites for facilitating their victimization, many other people are strictly against the bill and hope it will be reversed.
What is FOSTA-SESTA?
<span style="display:block;position:relative;padding-top:56.25%;" class="rm-shortcode" data-rm-shortcode-id="723125b44601d565a7c671c7523b6452"><iframe type="lazy-iframe" data-runner-src="https://www.youtube.com/embed/WBaqDjPCH8k?rel=0" width="100%" height="auto" frameborder="0" scrolling="no" style="position:absolute;top:0;left:0;width:100%;height:100%;"></iframe></span><p>SESTA (Stop Enabling Sex Traffickers Act) and FOSTA (Allow States and Victims to Fight Online Sex Trafficking Act) were signed into law by former President Trump in 2018. There was some argument that this law may be unconstitutional as it could potentially violate the <a href="https://constitution.congress.gov/constitution/amendment-1/" target="_blank">first amendment</a>. A criminal defense lawyer explains this law in-depth in <a href="https://www.youtube.com/watch?v=RoWx2hYg5uo&t=38s" target="_blank" rel="nofollow">this video</a>. </p><p><strong>What did FOSTA-SESTA aim to accomplish?</strong></p><p>The idea behind the law was simple: make it more difficult for online sex traffickers to find victims. FOSTA-SESTA started as two separate bills that were both created with a singular goal: curb online sex trafficking. Targeting websites like Backpage and Craigslist, where sex workers would often arrange meetings with their clientele, FOSTA-SESTA aimed to stop the illegal sex-trafficking activity being conducted online. While the aim of FOSTA-SESTA was to keep people safer, these laws have garnered international speculation and have become quite controversial. </p><p><a href="https://www.businesswire.com/news/home/20180321006214/en/National-Anti-Trafficking-Coalition-Celebrates-Survivors-Senate-Passes" target="_blank" rel="noopener noreferrer">According to BusinessWire</a>, many people are in support of this bill, including the National Center for Missing and Exploited Children and World Without Exploitation (WorldWE). </p><p>"With the growth of the Internet, human trafficking that once happened mainly on street corners has largely shifted online. According to the National Center for Missing & Exploited Children, 73 percent of the 10,000 child sex trafficking reports it receives from the public each year involve ads on the website Backpage.com."</p><p>As soon as this bill was <a href="https://www.pivotlegal.org/sesta_fosta_censoring_sex_workers_from_websites_sets_a_dangerous_precedent" target="_blank" rel="noopener noreferrer">signed into law</a>, websites where sex workers often vetted and arranged meetings with their clients could now be held liable for the actions of the millions of people that used their sites. This meant websites could be prosecuted if they engaged in "the promotion or facilitation of prostitution" or "facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking victims." </p><p><strong>The bill's effects were felt around the world — from Canadians being unhappy with the impact of this American bill to U.K. politicians considering the implementation of similar laws in the future.</strong> </p><p>Heather Jarvis, the program coordinator of the Safe Harbour Outreach Project (SHOP), which supports sex workers in the St. John's area, <a href="https://www.cbc.ca/news/canada/newfoundland-labrador/heather-jarvis-website-shutdown-1.4667018" target="_blank" rel="noopener noreferrer">explained to CBC in an interview</a> that the American bill is impacting everyone, everywhere: "When laws impact the internet — the internet is often borderless — it often expands across different countries. So although these are laws in the United States, what we've seen is they've been shutting down websites in Canada and other countries as well."</p><p>Jarvis suggests in her interview that instead of doing what they aimed to do with the bill and improving the safety of victims of sex trafficking or sexual exploitation, the website shutdowns are actually making sex workers less safe. </p><p>While <a href="https://gizmodo.com/the-uk-wants-its-own-version-of-fosta-sesta-that-could-1827420794" target="_blank" rel="noopener noreferrer">one U.K. publication</a> refers to FOSTA-SESTA as "well-intentioned but ultimately deeply-flawed laws," it also mentions that politicians in the United Kingdom are hoping to pursue similar laws in the near future. </p>Has FOSTA-SESTA done more harm than good?
<img type="lazy-image" data-runner-src="https://assets.rebelmouse.io/eyJhbGciOiJIUzI1NiIsInR5cCI6IkpXVCJ9.eyJpbWFnZSI6Imh0dHBzOi8vYXNzZXRzLnJibC5tcy8yNTUxMzY5Ny9vcmlnaW4uanBnIiwiZXhwaXJlc19hdCI6MTY2ODUyNDc4OX0.dSEEzcflJJUTnUCFmuwmPAIA0f754eW7rN8x6L7fcCc/img.jpg?width=1245&coordinates=-68%2C595%2C-68%2C595&height=700" id="69d99" class="rm-shortcode" data-rm-shortcode-id="734759fa254b5a33777536e0b4d7b511" data-rm-shortcode-name="rebelmouse-image" alt="sex worker looking online for a job" data-width="1245" data-height="700" />Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark?
Credit: Евгений Вершинин on Adobe Stock
<p>While <a href="https://www.businesswire.com/news/home/20180321006214/en/National-Anti-Trafficking-Coalition-Celebrates-Survivors-Senate-Passes" target="_blank">supporters of this bill</a> have framed FOSTA-SESTA as a vital tool that could prevent sex trafficking and allow sex trafficking survivors to sue those websites for facilitating their victimization, many other people are strictly against the bill and hope it will be reversed.</p><p><strong>One of the biggest problems many people have with this bill is that it forces sex workers into an even more dangerous situation, which is quite the opposite of what the bill had intended to do.</strong> </p><p>According to <a href="https://www.theglobeandmail.com/canada/article-anti-trafficking-activists-cheer-but-sex-workers-bemoan-shutdown-of/" target="_blank" rel="noopener noreferrer">Globe and Mail</a>, there has been an upswing in pimps sending sex workers messages that promise work - which puts sex workers on the losing end of a skewed power-dynamic, when before they could attempt to safely arrange their own meetings online. </p><p><strong>How dangerous was online sex work before FOSTA-SESTA? </strong></p><p><a href="https://www.beyond-the-gaze.com/wp-content/uploads/2018/01/BtGbriefingsummaryoverview.pdf" target="_blank" rel="noopener noreferrer">The University of Leicester Department of Criminology</a> conducted an online survey that focused on the relative safety of internet-based sex work compared with outdoor sex work. According to the results, 91.6 percent of participants had not experienced a burglary in the past 5 years, 84.4 percent had not experienced physical assault in the same period, and only 5 percent had experienced physical assault in the last 12 months. </p><p><a href="https://www.pivotlegal.org/sesta_fosta_censoring_sex_workers_from_websites_sets_a_dangerous_precedent" target="_blank" rel="noopener noreferrer">PivotLegal</a> expresses concerns about this: "It is resoundingly clear, both from personal testimony and data, that attacking online sex work is an assault on the health and safety of people in the real world. In a darkly ironic twist, SESTA/FOSTA, legislation aimed at protecting victims of and preventing human trafficking for the purposes of sexual exploitation, will do the exact opposite."</p><p><strong>Websites are also being hypervigilant (and censoring more content than needed) because they can't possibly police every single user's activity on their platform.</strong> </p><p>Passing this bill meant any website (not just the ones that are commonly used by sex traffickers) could be held liable for their user's posts. Naturally, this saw a general "tightening of the belt" when it came to what was allowed on various platforms. In late 2018, shortly after the FOSTA-SESTA bill was passed, companies like Facebook slowly began to alter their terms and conditions to protect themselves. </p><p>Facebook notably added sections that express prohibited certain sexual content and messages:</p><p style="margin-left: 20px;"><em>"Content that includes an implicit invitation for sexual intercourse, which can be described as naming a sexual act and other suggestive elements including (but not limited to):</em></p><p style="margin-left: 20px;"><em>– vague suggestive statements such as: 'looking forward to an enjoyable evening'</em></p><p style="margin-left: 20px;"><em>– sexual use of language […]</em></p><p style="margin-left: 20px;"><em>– content (self-made, digital or existing) that possibly portrays explicit sexual acts or a suggestively positioned person/suggestively positioned persons."<br><br> </em></p><p>Additionally, sections like this were also added, prohibiting things that could allude to sexual activity: </p><p style="margin-left: 20px;"><em>"Content in which other acts committed by adults are requested or offered, such as:</em></p><p style="margin-left: 20px;"><em>– commercial pornography</em></p><p style="margin-left: 20px;"><em>– partners that share fetishes or sexual interests"</em></p><p>Facebook wasn't the only website to crack down on their policies — the Craigslist classifieds section being removed and Reddit banned quite a large number of sex-worker related subreddits. </p><p><strong>Is FOSTA-SESTA really helpful?</strong> </p><p>This is the question many people are facing with the FOSTA-SESTA acts being passed just a few years ago. Is this really going to help, or is this bill simply pushing sex work and sex-related content further into the dark? Opinions seem to be split down the middle on this — what do you think?</p>What is the ‘self’? The 3 layers of your identity.
Answering the question of who you are is not an easy task. Let's unpack what culture, philosophy, and neuroscience have to say.
