Political Economy, Political Technology

Ferment is Abroad: Techlash, Legal Institutions, and the Limits of Lawfulness

PUBLISHED

Salomé Viljoen (@salome_viljoen_) is a joint postdoctoral fellow at the NYU School of Law Information Law Institute and the Cornell Tech Digital Life Initiative.

PUBLISHED

Salomé Viljoen (@salome_viljoen_) is a joint postdoctoral fellow at the NYU School of Law Information Law Institute and the Cornell Tech Digital Life Initiative.

“Laws have to determine what’s legal, but you can’t ban technology. Sure, that might lead to a dystopian future or something, but you can’t ban it.”

David Scalzo (an early investor in Clearview AI)

Technological and legal institutions are facing twin moments of reckoning.

On the one hand, we have the “techlash.” Over the past several years, enthusiasm for Silicon Valley’s California Ideology as a source of hope and vigor for the Western capitalist imaginary has begun to fade. No longer does the tech industry enjoy unquestioned goodwill and enthusiastic popular support for their narratives of technological determinism and profitable do-goodery. On the contrary, the industry has been the focus of increased public distrust, civil and worker activism, and regulatory scrutiny—a collective curdling of goodwill referred to as the “techlash.” There is a growing recognition that technology is deeply political and a growing distrust of the neoliberal politics our current political economy of technological innovation materializes.

In near parallel, ferment is (once again) abroad in the law. In the face of highly controversial court appointments and clear failures of justice in how the law responds to challenges like climate change, mass incarceration, and growing economic inequality, methods that separate out the task of legal reasoning from its political urgency and distributive consequences ring increasingly false. Both popular and scholarly commentators challenge the incapacity of our legal institutions to protect against (or even to acknowledge as legally relevant) the worst abuses of our time. These critiques emphasize the limits of (anti-democratic) progressive political strategies that rely too heavily on appeals to existing legal institutions and methods rather than developing strategies to democratically re-invigorate (or replace, or abolish) those institutions.

Making sense of these twin moments requires that we view law, economics, and computation as three deeply interrelated ways to organize and express power. Both law and technology have played a foundational role in constructing, maintaining, and extending neoliberal modes of governance. Technological implementations have given new life to the longstanding neoliberal separation of economic and political domains, and legal methods that have facilitated the neoliberal political economy have also enabled new technologies. As critiques of the centrality of neoliberal economic logic gain traction, we must take care that such work does not simply clear the path for an emerging hegemony of neoliberal computational logic. Instead, we must be attentive to proponents of the epistemic and political dominance of computational mechanisms, and we must critique them on similar grounds and with similar urgency. In addition, theories of the legal programs and methods required to democratize the economy must not ignore the role digital technologies may play in achieving these goals.

As critiques of the centrality of neoliberal economic logic gain traction, we must take care that such work does not simply clear the path for an emerging hegemony of neoliberal computational logic.

Understanding the relation between these two moments is thus important for the political programs of both technological reform movements and legal reform movements. Technological processes intermediate—and in the process, transform and exacerbate—many of the most pressing challenges facing legal reformers today. At the same time, the intellectual and political program of Law and Political Economy isn’t sealed off in a vacuum; the fact that our current legal methods and institutions are insensitive to their social consequences sets the terms of popular debate over technology governance.

One way to make sense of these twin moments is as two instances of a larger egalitarian political reawakening. Both legal and technical institutions play a role in institutionalizing the current narratives of property, entrepreneurship, and meritocracy that justify enduring inequalities. As this justificatory narrative grows more fragile and contestable, so too do the legal and technical methods that enact it. The role of both technological and legal institutions in encoding this contested narrative leads people to evaluate anew whether these institutions can and do effectuate justice. In response, both legal and technological reformers share a broad methodological commitment: expanding the epistemic capacity of technical or legal methods to grapple with inequality. They also share a broad political agenda of reforming technology or law to further social justice goals.

A second way to make sense of these twin moments is to recast the problems of the techlash as problems of legal institutional failure—the same methodological and normative failures that lie at the heart of LPE scholarship. Casting the problems of the techlash (and how to appropriately respond to it) as problems of law is particularly helpful, since it can identify and avoid the pitfalls of a new conciliatory legal agenda emerging in Silicon Valley. In addition, understanding the techlash as a consequence of our legal institutions’ failure can suggest the political and legal agendas required to address them.

The quote from David Scalzo above articulates a clear theory of what the law is and ought to be; one that has grown pervasive (albeit in a more sophisticated form) in Silicon Valley. I call this view the “lawfulness response.” It is evident in large banners atop the New York Times home page from Facebook calling for platform regulation and from Amazon lauding minimum wage hikes. It takes the form of sober Congressional hearings from Mark Zuckerberg on mis- and dis-information, of Google executives urging lawmakers to adopt facial recognition legislation, and of ad-tech companies lobbying for federal privacy legislation. These assurances are (of course) doing political work: they proactively offer reduced or diminished regulation in a bid to preclude more comprehensive forms of legal and technical reform, and they encourage regulations that favor incumbents over potential competitors. In doing so, these statements put forward a theory of law similar to Mr. Scalzo’s: existing or new law can regulate technologies (if it must), but there are limits to what the law can and should do. And banning technologies like face recognition or business models premised on data extraction lies beyond these limits.

Understanding law’s role as foundational to (rather than absent from) the shape of our digital economy can clarify the kind of legal response required to achieve the social demands of the techlash.

The lawfulness response updates the prior wild-west ebullience of technologists whose previous view on law was not to think of it at all, or at least to insist on its irrelevance (technological advances moved too fast for law and innovated in ways too vital to be hampered by law). Instead, the lawfulness response makes concessions to the techlash. Like the good Bayesians they are, technologists have updated their priors regarding the seriousness of law.

Adopting this kind of placating regulatory position is not new; many industrial sectors employ this strategy. It recalls a certain attitude of banks post-2008 crisis: a patina of cowed mea culpa over assurances that lessons have been learned. However, the lawfulness response risks being taken more seriously (even by some of tech’s fiercest critics) given the particular backdrop of tech’s long insistence on its legal exceptionalism, and its attempts to address the techlash inside this “lawless” tradition with appeals to more “responsible,” “humane,” “human-centered,” or “ethical” technology. In light of where the tech industry began, the lawfulness response seems like a radical transformation in attitude and a potentially serious remedy for the lawlessness of tech. But this relative improvement masks the political possibility of more robust alternatives, and relies on a false understanding of law’s role in facilitating the harms of the techlash.

The resulting distinction between law’s absence and presence implies that once law’s presence has been achieved, the problems of the techlash will be addressed. But as scholars like Julie Cohen, Frank Pasquale, and Katharina Pistor have shown, these problems do not arise from law’s absence. Indeed, innovating legal institutions played an active role in bringing about tech’s current state. Law mediates the institutions that it enacts, the productive activities it encases, and the modes and myths of production it upholds and legitimates. Understanding law’s role as foundational to (rather than absent from) the shape of our digital economy can clarify the kind of legal response required to achieve the social demands of the techlash.

The lawfulness response also highlights the limits of legal traditions that dislocate the analysis of law from an analysis—and advocacy—of democratizing reform. In this way, the techlash offers a paradigmatic example of the political traps that movements must navigate under law’s Twentieth-Century Synthesis. By arguing that we “can’t ban” technology—by taking out those Facebook and Amazon banner adverts—the technology industry is advancing its theory of what the law is. On this view, the law offers companies a means to regain or retain legitimacy for their business in the face of accusations of injustice. First, it serves to distinguish the posited unlawful practices from the rest—defining and separating out the “bad apple” practices within a firm or industry as the relevant subject of reform. Second, the separation of unlawful actions from lawful ones distances practices that are central to a company’s business from those that are not. By dealing seriously with the unlawful practices, the category distinction between these (unlawful) practices and the remaining (lawful) ones is reinforced. Finally, the lawful practices—whatever we may think of their social or distributive consequences—become off-limits to democratic control. This process accords with a primary function of law under the twentieth-century synthesis: to accommodate and improve private market functioning.

But other theories of law are possible. The boundaries that tech companies draw around the political possibilities of law exist to accommodate and privilege the interests of the few over the interests of the many. There are many fruitful discussions to be had regarding the legal terrain that lies beyond these boundaries—reforms that ban certain technologies and business models, that exert far more democratic control over our technological future, and that reject the technological determinism that characterizes our current trajectory. Indeed, it is this terrain that is most likely to yield satisfying responses to the challenges raised by the techlash.

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