Acoustic Separation

• Imaginary Encounter on the Clapham Omnibus

Oliver has just cinched a place in a law school. His first homework is to cobble together funds from all the measly sources available to foot a tuition bill as astronomical as this ivy-clad fortress's prestige. Following an exhausting search, he chances upon a short scholarship listing by a small town's welding association in a dusty trade report. He meets its criteria because his sickly father still toils away as an underpaid welder. After being tossed around by clueless and harried employees in a messy string of emails, phone calls and in-person visits, he finally gets the association's secretary to process his application. They grumpily grant him the monies, but not without reminding him not to spread news of the existence of the scholarship around. Read on to see why he might be tempted to borrow the legal concept of acoustic separation to analyse this experience.

• What is Acoustic Separation? Wouldn't it be nice if it's employed instead for a peaceful in-flight sleep experience?

It might, without disturbing anyone's conscience, in some other format. Acoustic separation here refers to the communication of different information about a matter to different audiences, without either side privy to information the other receives. Developed by American law professor Meir Dan-Cohen, this concept has been used as an approximate model for the issuing of different legal rules to private actors (i.e. non-regulatory parties like members of the public) and law enforcement authorities.*1 *2 Whereas law enforcement authorities are issued with binding directions he called 'decision rules',*3 private actors are issued with what he differentiated as 'conduct rules'—behavioural guidelines*4 that are not necessarily binding in court on their own in exactly the way they are worded, and which level of detail may differ from that of corresponding decision rules.*5 In criminal law, for instance, ordinary people are told that various acts are offenses, while judges are told that circumstances such as duress should excuse otherwise criminal behaviour.*6 It was also Dan-Cohen himself who, in drawing comparisons to strategic secrecy in political manoeuvres, first made references to acoustic separation in non-legal contexts.*7

• How Can Acoustic Separation be Realised?

1. Publicity control
2. Expertise barrier—Keep content meant for one side vague, difficult for the other to comprehend and unpredictable, subject to the case-by-case judgement of those in charge, as with judicial discretions.*8
3. Exclude people who cannot be subject to acoustic separation (e.g. prison escapees, who are expected to be generally more familiar with the legal system, in the case of criminal defences) from benefits associated with the suppressed information, or at least raise the qualifying standards for those benefits in their case.*9

• Strengths of Acoustic Separation

1. Relatively uncluttered and simplified messages ('Do not trespass', 'Do not steal') yield a higher level of desired behaviour from the audiences.*10
2. Widespread ignorance of the suppressed information increases the probability that benefits associated with the information will be granted to those who truly need them. For example, when a person unaware of possible legal defences commits an offence, we can be more confident that her action is borne of helplessness, not underestimation of the criminal proscription's importance.*11 That makes it likelier that she deserves any applicable defence. Similarly, in the opening scenario, the low profile of the scholarship imaginably results in it being hunted down by only the most resourceful, industrious and desperate, who would go to the greatest lengths to search for funding.
3. More nefariously, two-faced communication facilitates the pursuit of otherwise contradictory goals. In Oliver's case, the welding association potentially gets to trumpet a social initiative (i.e. the offer of scholarships) on not only the trade report but also its own annual report, both of which are rarely read by young high school and college graduates, without actually spending the money from its miniscule budget or diverting its limited manpower from regular tasks.

• Vulnerable Spots

1. Leakage of suppressed information potentially undermines credibility of the parties controlling and holding the information.*12 It is difficult, after all, to maintain neat lines between audiences. In fact, lay people are often free*13 to pore over legal textbooks, statutes and case law, especially if they have the requisite time and institutional subscriptions to law databases. Bans of such access would appear tyrannical and, indeed, undermine the cognitive autonomy of legal subjects.
2. Information suppression itself, in fact, limits targeted individuals' cognitive autonomy, which in turn threatens other aspects of their autonomy. To the extent that those in charge of acoustic separation also have to account for these individuals' wellbeing and/or even step in to take care of what anyone cannot by herself as a result, this measure poses extra burden to its adopters.
3. Lack of transparency and, in the case of expertise barriers, determinacy*14 may lead to unchecked biases, arbitrariness, power abuse, etc. on the part of parties controlling and holding suppressed information.
4. Flaws perceived under unawareness of suppressed information may breed discontent.*15 While simple messages may be more effective at guiding immediate action, people are often ultimately complex in thought, and societal customs nuanced at points. In fact, members of the public tend to be more forgiving of those who commit violence in self-defence, for instance, so a conduct rule that condemns all instances of battery equally without taking into account exigencies would strike them as unsympathetic and inflexible in the absence of further information. A disgruntled audience will see stronger reason to turn to an alternative authority / service provider / membership body (e.g. a rival political party, country or trade body) that sells itself with more holistic signalling.
5. For the purpose of reserving valuable resources to the most worthy, acoustic separation makes for a blunt tool. Factors other than virtue can lead individuals to the resources. One obvious example is privileged connections,*16 as with law school entrants whose friends' relatives sit on the welding association's board. Yet, given the potentially diffuse and complicated nature of social networks, it is hard to successfully exclude everyone with unfair advantages from making claims on resources. 
6. On the flip side, it is unfair to penalize people for a privilege they did not intend for and cannot control. Individuals who cannot be subject to acoustic separation are probably just as in need of the resources.*17

• Food for Thought

Among the issues at stake, autonomy is at particular disadvantage in expert cost-benefit analyses. Due to the open-ended nature of might-have-beens, autonomy loss entails opportunity costs that are difficult to quantify or even delineate. What a person would want to do with a certain freedom in an ever-evolving future, where unanticipated opportunities and complications can shape her plans, is hard to foretell. Neither is it unproblematic for a paternalistic authority to decide for her the relative value of any trade-off and replaced possibility. In contrast, there is a myriad of conventional performance indicators to support, on the surface at least, attractively straightforward discussion and impact monitoring in the other areas of concerns: compliance rate, resource distribution footprint, public support polls, range of welfare provisions. It goes without saying that decision-making bodies preoccupied with figures and data are especially likely to be distracted from the intangible ideal that autonomy is in comparison. 

So far, this discussion has approached autonomy from a utilitarian angle. As far as its intrinsic value is concerned, though, autonomy is irreplaceable. The ability to make one's own decisions is a merit in itself, however scarce the possible decisions are, however self-damaging the eventual decision is, and however perfectly another party can arrive at and implement the same decision for one. Naturally, granting everyone in a society the freedom to realise all imaginable wishes is unsustainable. Where lines can be drawn in the scenario of information access are: 1. the rejection of wilful misrepresentation, including deception by omission, and 2. the right not to divulge matters unrelated to any audience member and which concealment do not distort reality.

Economic concepts surrounding private and public goods can aid an ethical analysis of resource allocation outcomes that result from acoustic separation. If a private entity has produced the resources, it should have the right to determine who to transfer them to while they are still in its hands, as long as in so doing it does not engage in fraud, unreasonably renege on agreements, or knowingly select recipients who would use the resources for illicit purposes. Further complications emerge, however, when the resources are an essential good in limited supply. Private entities that monopolise markets for such goods, for example, arguably have the responsibility to disseminate information that serves as doors or obstacles to these resources with greater care. On the other hand, if a resource has been put together or maintained with public funds, which is often the case for open-natured resources otherwise prone to free-rider problems like national defence, reservation of it for some privately favoured parties would perhaps be unfair in the first place. 

Before leaving this topic, note that the entire deliberation falls away once you realise an audience has long been well aware of a piece of suppressed information of concern. The doctrine of self-defence, in fact, is common knowledge in many countries, even if mastery of the fine details remains largely the preserve of minorities, so it cannot be an actual example of information obscured through acoustic separation. In discussing acoustic separation, it is important not to patronise an audience and underestimate their astuteness in intelligence gathering and discerning non-verbalised facts. Like Dan-Cohen's model itself, examples raised can be hypothetical or exaggerated, presented merely to illustrate a point with clarity. Commentators*18*19 and the academic himself*20 have noted that, in reality, communication barriers are frequently not kept airtight. Additionally, what comes across as acoustic separation in some situations may really be intended as an emphasis of selected information, performed with awareness that the audience knows the full details and merely needs particular attention on certain points. Then again, information omission under an assumption that it is already common knowledge may be unfair and even injurious to audience members marginalised in informal information sharing networks for some reason (e.g. newcomers to a culture).*21 In short, checks on the ground level are often necessary. No inspired thinking can readily afford to leave behind the realm of concrete reality.

• More Servings

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*1:Daniel Friedman, 'Rights and Remedies' in Nili Cohen and Ewan McKendrick (eds), Comparative Remedies for Breach of Contract (Hart Publishing 2005) 12.

*2:Meir Dan-Cohen, 'Decisions Rules and Conduct Rules: On Acoustic Separation in Criminal Law' (1984) 97 Harv L Rev 625.

*3:Dan-Cohen, 629.

*4:Dan-Cohen, 630.

*5:Dan-Cohen.

*6:Dan-Cohen, 633.

*7:Dan-Cohen, 666.

*8:Dan-Cohen, 640.

*9:Dan-Cohen, 645.

*10:Dan-Cohen, 633 ('Eliminating the defense from the conduct rules addressed to the public allows the system to reap the benefits of maximum obedience to the law.').

*11:Dan-Cohen, 638.

*12:Emily Sherwin, 'Law and Equity in Contract Enforcement' (1991) 50 Md L Rev 253, 308-09.

*13:Richard Singer, 'On Classism and Dissonance in the Criminal Law: A Reply to Professor Meir Dan-Cohen' (1986) 77 J Crim L & Criminology 69, 85 (in reference to public access to legal opinions and decision rules in the United States at least).

*14:Dan-Cohen, 650, 661 and 668 (note that, unlike this article at this point, he was justifying the need for precise decision rules, not discussing the dangers of expertise barriers).

*15:Singer, 90.

*16:Singer, 86 (discussing the potential information advantage of legal support staff and would-be offenders indirectly connected to repeat convicts).

*17:Singer, 87-89.

*18:Singer, 84.

*19:David L Shapiro, 'In Defense of Judicial Candor' (1987) 100 Harv L Rev 731, 746 fn 69.

*20:Dan-Cohen, 631 and 635.

*21:Eric E Jones and others, ''I'm out of the loop': Ostracism through information exclusion' (2009) 12 Group Process Intergr Relat 157, 171.