This post is part of a series highlighting some of our favorite entries from the archives. Read the rests of the posts here.
***
Christmas comes early at the Blog this year. No, our bonus wasn’t big enough to buy you the hottest new gadget. But after sending our student editors deep into the LPE vault, we bring you something even more valuable: ten classic posts on how technology shapes our political, economic, and social world, and how the law should respond to these developments. And while these entries only scratch the surface of our past tech coverage—which includes tech–related symposia, events, and syllabi, syllabi, syllabi—we nevertheless hope they convey what an LPE approach can offer on the subject.
After the “Great Deplatforming”: Reconsidering the Shape of the First Amendment — Genevieve Lakier & Nelson Tebbe
The decision by social media companies in the United States to ban President Trump and thousands of his supporters after January 6 spotlighted how poorly equipped contemporary First Amendment doctrine is for conceptualizing threats to freedom of speech that result from private control of the mass public sphere. On the one hand, if the First Amendment limits only state actors, then social media companies are free to ban or censor whomever they please. On the other hand, if such platforms are subject to the strict limitations placed on the state, then they would be barred from content-based acts of filtering, recommending, and ranking speech—the platforms would become unusable. Luckily, as Lakier and Tebbe argue, we do not have to choose between John Roberts and Mark Zuckerberg as the guardians of democracy; there is another, older framework available to us.
The House Always Wins: The Algorithmic Gamblification of Work — Veena Dubal
In our most-read post of 2023, Veena Dubal documented the rise of what she termed “algorithmic discrimination” in the ride-hail industry. Rather than receive a salary or predictable hourly wage, workers in the on-demand economy are often paid using opaque and constantly fluctuating formulas, allowing firms to personalize and differentiate wages in order to influence worker behavior. These payment schemes, she argues, violate long-established norms of fairness, undermine economic stability, and make it nearly impossible for workers to predict or understand their compensation. As a result, many workers now experience their jobs as a form of gambling, in which they are being tricked into working longer for less.
From Territorial to Functional Sovereignty: The Case of Amazon — Frank Pasquale
Take a ride in the wayback machine to one of our first posts, in which Frank Pasquale argues that major online platforms are slowly replacing the logic of territorial sovereignty with functional sovereignty. In arenas from room-letting to transportation to commerce, we are increasingly subject to corporate, rather than democratic, control. Taking Amazon as his prime example, Pasquale asks us to consider the political economic origins of this new e-commerce feudalism. As the evisceration of class actions, the rise of arbitration, and boilerplate contracts all weaken traditional consumer rights, it’s rational for buyers to turn to Amazon’s dispute resolution schemes to settle conflicts and impose the order that libertarian legal doctrine has stripped from the state. In so doing, however, they reinforce the very dynamics that led to the state’s etiolation in the first place.
The Role of Technology in Political Economy — Yochai Benkler
What role does technology play in rising inequality? Is it, as the dominant view among policymakers argues, the primary explanatory variable, operating in reasonably efficient markets to shape the value of different workers, and hence the pay they can command? Is it, as labor economists critical of the mainstream imply, a side show, since inequality is overwhelmingly a consequence of political choices that shape bargaining power in markets pervaded by power? After rejecting each of these views, Yochai Benkler outlines a view that accepts that platforms, robots, and algorithms exert a real influence on the economy without ascribing to the idea that it does so through “natural” processes. To understand the role of technology in this dynamic, he argues, we must integrate it with institutions and ideology such that it becomes an appropriate site of struggle over the pattern of social relations.
Upon the Conviction of the Villain Sam Bankman-Fried — Raúl Carrillo
While many of us were busy dancing in the streets celebrating the boy king’s downfall, Raúl Carrillo argued that Sam Bankman-Fried’s conviction should not be seen as any kind of victory. For three years, SBF exploited a financial regulatory system stuck in older ways of thinking, increasingly incapable of preventing illicit finance in the platform economy. After mapping how Bankman-Fried probed various agencies, identifying their limits in jurisdictional reach and deficiencies in institutional capacity, Carrillo concludes by pointing to the gathering storms on the horizon. Silicon Valley, far from being chastened by the SBF verdict, is busy building a parallel financial services system. If we are to stop what’s coming, we must help accelerate the turn to proactive planning, including via the day-to-day, direct supervision of major financial institutions.
Social Media, Authoritarianism, and the World As It Is — Meredith Whittaker
In the wake of the TikTok Ban, Signal President Meredith Whittaker explained why she was concerned about concentrating global surveillance and propaganda power in the hands of the United States. Many who work in law and policy, she observes, share an unspoken but foundational presumption of a functional, liberal state whose machinery of checks, balances, and independent agencies will produce, in the end, a more or less just outcome. This is, in part, an occupational necessity: a focus on the details of a particular case, or bill, or enforcement action tends to assume an orderly world lies beyond, into which such work will be situated and can produce incremental improvement. Yet such implicit assumptions, Whittaker argues, look increasingly unjustified. From Florida’s 2022 “Don’t Say Gay” law to rampant book bans to the crackdown on pro-Palestine speech, an illiberal tide with a deeply censorious agenda is rising. Before we seek to expand vectors of platform control, we need to think seriously about who will wield this power and who is likely to get hurt.
Data Governance for a Society of Equals — Salomé Viljoen
Data production is no longer incidental to economic activity: the imperative to accumulate data is part of what makes informational capitalism informational. This shift in our economy, Salomé Viljoen argues, requires that we reconceptualize the kinds of processes that law regulates and the harms it aims to protect against. While current reforms tend to view data as either a person-like or property-like entity, over which individuals might be granted stronger rights, Viljoen argues that we should instead focus on data relations: the way data’s collection and use puts people (or entities) into relation with one another. This is, in part, because a great deal of data production—what makes data about people useful, valuable, and also harmful—has to do with data’s capacity not only to reveal facts specific to the data subject, but also to reveal facts (or inferences) about others that share features with the data subject.
Beyond Privacy: Changing the Data Power Dynamics in the Workplace — Matthew Bodie
As part of our series on Worker Surveillance & Collective Resistance, Matthew Bodie argues that that recent explosion in workplace monitoring cannot be addressed merely by affording individual workers privacy protections or property rights over their data. Instead, worker data rights must be coupled with collective action. Specifically, Bodie proposes that along with lifting the many roadblocks to collective bargaining, we should consider other organizational structures that could facilitate worker participation in the governance of workplace data, such as through codetermination or works councils.
Police Surveillance Machines: A Short History — Elizabeth Joh
Advocates for the adoption of police body cameras argued that these technologies would increase transparency and accountability surrounding police interactions with civilians by collecting and preserving data for public review. As Elizabeth Joh explains, however, the implementation of these technologies has raised new concerns about concentrated private power, consumer platform protection, and adequate regulation of data. Federal grants that encouraged local agencies to purchase their own surveillance technology eventually led to private corporate players having significant power over law enforcement data and, by extension, the very nature of policing. These private vendors set the design specifications for their products, leaving crucial questions about data collection and privacy in the hands of corporate actors. Additionally, the rush to adopt surveillance technology without uniform or consistent adoption of best practices has left departments’ promise of accountability and transparency ill-served.
Scaling Trust and Other Fictions — Julie E. Cohen
In her contribution to our symposium on Lina Khan and David Pozen’s “A Skeptical View of Information Fiduciaries,” Julie Cohen argues that idea of information fiduciaries, as well as current proposals for structural regulation, misunderstand the nature of digital platforms. The fiduciary proposal abstracts away speed, immanence, automaticity, and scale, and thus fails to reckon adequately with the characteristics of the platform-consumer relationship that are most problematic. Current proposals for structural regulation, meanwhile, place scale front and center, but they have little to say about personalization, or about the ways that speed, immanence, and automaticity intertwine with personalization to produce new kinds of information harms. The flaw in both proposals is that they smack of nostalgia, seeking to deploy the tools of bygone eras. Governing information, she concludes, will require innovative institutional design.
