Technology, Political Economy, Together With The Role(S) Of Law

Julie E. Cohen

[This post is adapted from Part I of my mass manuscript, Between Truth in addition to Power: The Legal Construction of Informational Capitalism (OUP, forthcoming).]

Legal scholars who operate on information policy tend to focus on questions virtually how existing doctrinal in addition to regulatory frameworks should apply to information-era line of piece of work organisation models in addition to online behavior, possibly undergoing some changes inward coverage or emphasis along the way. They direct maintain asked, inward other words, how police trace should respond to the changes occurring all around it. For the most part, they direct maintain non asked the broader, reflexive questions virtually how nitty-gritty legal institutions are already evolving inward response to the ongoing transformation inward our political economy—questions virtually how disputes over information are reshaping the corporation of police trace at the institutional level. That is a mistake. Information-economy actors do non only human activity inward markets; they also mobilize legal tools in addition to institutions to advance their diverse goals. Through that process, legal institutions gradually choke reoptimized for the novel roles they are called upon to play.

Consider 2 historical examples: As political economist Karl Polanyi explained, Britain’s transition from an agrarian scheme of political economic scheme to an industrial in addition to capitalist scheme involved large-scale appropriation of resources but also entailed every bit large-scale conceptual in addition to organizational shifts. Over time, the basic factors of industrial production—labor, land, in addition to money—were reconceptualized as commodities, piece at the same fourth dimension patterns of barter in addition to telephone commutation became detached from local communities in addition to reembedded inward the constructed machinery of “the market.” The crusade to industrial capitalism also both relied on in addition to transformed existing legal institutions. Processes of enclosure of mutual lands, appropriation of other natural resources, displacement of populations from farms to cities, structure of factories for extraction of the value of commodity inputs (including wage labor), in addition to merchandise inward the resulting products all required enabling legal constructs inward guild to work. Eventually, as those processes produced mounting costs to human wellbeing, a protective countermovement emerged that incorporated novel regulatory components. But the countermovement was non law’s get-go response. Law was, in addition to then to speak, inward on the basis floor, working to make the novel relations of economical production.

Beginning inward the mid-nineteenth century, the American political economical landscape underwent a parallel transformation that also both relied on in addition to transformed legal institutions. The purpose of that story amongst which contemporary lawyers in addition to legal scholars are most familiar involves the creation of the modern administrative state during the get-go one-half of the twentieth century in addition to the bitter disputes virtually constitutional police trace that accompanied it. But those disputes were themselves shaped past times before doctrinal in addition to conceptual realignments that privileged rising industrial in addition to commercial interests. The evolution of private in addition to commercial police trace during both the antebellum period in addition to the post-Civil War years established the distributive backdrop for the disputes virtually populace police trace that unfolded later. Once again, police trace was inward on the basis floor; countermovements came later.

For some fourth dimension now, political economies inward the developed basis direct maintain been undergoing a transformation from industrial to informational capitalism.  Borrowing from Polanyi, it is helpful to frame the emergence of informational capitalism inward damage of 3 large-scale shifts: the propertization (or enclosure) of intangible resources, the dematerialization in addition to datafication of the basic factors of industrial production, in addition to the embedding (and rematerialization) of patterns of barter in addition to telephone commutation inside information platforms. Once again, powerful interests direct maintain a stake inward the outcome, in addition to in ane lawsuit again, they are enlisting police trace to make novel institutional settlements.

One laid of ongoing changes involves patterns of entitlement in addition to disentitlement inward novel informational resources. Two factors inward detail direct maintain facilitated the remixing of entitlements inward ways that do goodness powerful information-economy actors. First, networked information in addition to communication in addition to technologies tin live configured to arguing the playing land this agency or that. Second, processes of entitlement Definition are fundamentally performative, in addition to online interactions betwixt information businesses in addition to their users direct maintain come upward to play outsize roles inward stabilizing in addition to reifying emerging patterns of information power.

As an illustration, visit some questions raised over in addition to over over again during Facebook CEO Mark Zuckerberg’s Congressional testimony: what information does Facebook collect virtually individuals; who owns the data; in addition to is “regulation” of Facebook’s information collection in addition to processing practices necessary?

What information does Facebook collect virtually individuals? claimed that their manipulations of the information surroundings are speech-like inward their ain right. Influenza A virus subtype H5N1 employment confronting such claims is that the marketplace-of-ideas metaphor is increasingly ill-suited to the reality inward which nosotros regain ourselves. The metaphor posits that the complimentary stream of ideas volition facilitate the exercise of informed in addition to deliberate reason. Contemporary, platform-based media environments direct maintain been optimized to honour behavioral cues in addition to to appeal to motivation in addition to emotion on a subconscious level. The final result has been a serial of object lessons inward the police trace of unintended consequences. It is high fourth dimension nosotros faced upward to the fact that the media technologies that nosotros direct maintain are non the technologies of liberty that nosotros enjoin nosotros want.

But hither a novel metaphoric frame, that of the information laboratory, makes its appearance. Platform businesses direct maintain worked steadily to reframe their pervasive manipulations of the information surroundings inward the service of turn a profit extraction as scientific truth-discovery processes. Providers of information services, they argue, are simply experimenting to encounter which types of information are most useful in addition to most responsive to consumers’ needs in addition to desires. The real same manipulation that undermines the marketplace metaphor is essential to the sentiment of the information laboratory, which positions the networked information in addition to communications surroundings as a depoliticized, self-regulating apparatus for “innovation” that is—and should be—untouchable past times protective regulation. Facebook has leaned into that effort, answering charges of hole-and-corner manipulation past times reference to “innovation” in addition to offering app developers for its global internet.org projection an “Innovation Lab” to show their products. Within the frame of the information laboratory, occasional glitches choke matters best left to the experts inward the white lab coats to sort out. This explains a lot virtually the bizarre spectacle of sitting legislators timidly bespeak a titan of information-age manufacture what kinds of rule he would live willing to convey (“I’ll direct maintain my squad teach dorsum to you lot on that.”). The frame of the information laboratory is highly compatible amongst a arrive at of self-regulatory responses; it does non invite rigorous external oversight.

If rule of Facebook (and Google in addition to Amazon and…) is to direct maintain a promise of succeeding, it is essential to admit the existence in addition to mightiness of narratives virtually the populace domain of personal information, virtually appropriation via boilerplate in addition to protocol, in addition to virtually the information laboratory as a site of immunity from accountability. Those narratives stand upward for the law’s get-go responses to the demands of information capital, in addition to they are already working to make novel relations of economical production in addition to power.

Julie E. Cohen is Mark Claster Mamolen Professor of Law & Technology, Georgetown Law Center. You tin attain her past times email at jec at law.georgetown.edu .

Cross-posted at Law in addition to Political Economy Blog