Julie E. Cohen –
Legal scholars who work on information policy tend to focus on questions about how existing doctrinal and regulatory frameworks should apply to information-era business models and online behavior, perhaps undergoing some changes in coverage or emphasis along the way. They have asked, in other words, how law should respond to the changes occurring all around it. For the most part, they have not asked the broader, reflexive questions about how core legal institutions are already evolving in response to the ongoing transformation in our political economy—questions about how disputes over information are reshaping the enterprise of law at the institutional level. That is a mistake. Information-economy actors do not simply act in markets; they also mobilize legal tools and institutions to advance their various goals. Through that process, legal institutions gradually become reoptimized for the new roles they are called upon to play.
Consider two historical examples: As political economist Karl Polanyi explained, Britain’s transition from an agrarian system of political economy to an industrial and capitalist system involved large-scale appropriation of resources but also entailed equally large-scale conceptual and organizational shifts. Over time, the basic factors of industrial production—labor, land, and money—were reconceptualized as commodities, while at the same time patterns of barter and exchange became detached from local communities and reembedded in the constructed mechanism of “the market.” The movement to industrial capitalism also both relied on and transformed existing legal institutions. Processes of enclosure of common lands, appropriation of other natural resources, displacement of populations from farms to cities, construction of factories for extraction of the value of commodity inputs (including wage labor), and trade in the resulting products all required enabling legal constructs in order to work. Eventually, as those processes produced mounting costs to human wellbeing, a protective countermovement emerged that incorporated new regulatory components. But the countermovement was not law’s first response. Law was, so to speak, in on the ground floor, working to produce the new relations of economic production.
Beginning in the mid-nineteenth century, the American political economic landscape underwent a parallel transformation that also both relied on and transformed legal institutions. The part of that story with which contemporary lawyers and legal scholars are most familiar involves the creation of the modern administrative state during the first half of the twentieth century and the bitter disputes about constitutional law that accompanied it. But those disputes were themselves shaped by earlier doctrinal and conceptual realignments that privileged rising industrial and commercial interests. The development of private and commercial law during both the antebellum period and the post-Civil War years established the distributive backdrop for the disputes about public law that unfolded later. Once again, law was in on the ground floor; countermovements came later.
For some time now, political economies in the developed world have been undergoing a transformation from industrial to informational capitalism. Borrowing from Polanyi, it is helpful to frame the emergence of informational capitalism in terms of three large-scale shifts: the propertization (or enclosure) of intangible resources, the dematerialization and datafication of the basic factors of industrial production, and the embedding (and rematerialization) of patterns of barter and exchange within information platforms. Once again, powerful interests have a stake in the outcome, and once again, they are enlisting law to produce new institutional settlements.
One set of ongoing changes involves patterns of entitlement and disentitlement in new informational resources. Two factors in particular have facilitated the remixing of entitlements in ways that benefit powerful information-economy actors. First, networked information and communication and technologies can be configured to tilt the playing field this way or that. Second, processes of entitlement definition are fundamentally performative, and online interactions between information businesses and their users have come to play outsize roles in stabilizing and reifying emerging patterns of information power.
As an illustration, consider some questions raised over and over again during Facebook CEO Mark Zuckerberg’s Congressional testimony: what data does Facebook collect about individuals; who owns the data; and is “regulation” of Facebook’s data collection and processing practices necessary?
What data does Facebook collect about individuals? The short answer (although Zuckerberg stonewalled by reframing the question as a narrower one about what users themselves have deliberately posted): Whatever it can. A longer answer is that, because the data extracted from individuals plays an increasingly important role as raw material in the political economy of informational capitalism, Facebook and other information-economy actors have worked hard both to design online environments that are optimized for data harvesting and to construct narratives about that process within which information businesses enjoy privileges to appropriate the data flows they have harvested (and individuals correlatively lack rights to prevent appropriation). Borrowing from intellectual property law, one might say that contemporary practices of personal information processing work to call into being a new type of public domain: a source of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity. That framing supports the reorganization of sociotechnical activity in ways directed toward extraction and appropriation. It also underwrites the logic that designates the techniques of knowledge production used by Facebook and other information businesses as sites of legal privilege—as proprietary “innovations” that belong, and ought to belong, to those firms.
Who owns the data that Facebook collects? The short answer (although Zuckerberg resisted giving it): Facebook, of course. A longer answer is that, even though law students in basic intellectual property courses quickly learn that one cannot “own” information, data and algorithms have become the subjects of active appropriation strategies, and platforms like Facebook’s have emerged as key sites of appropriation. Narratives about a new public domain of personal information give Facebook a normative leg up in that process, but the process of legal entrepreneurship does not stop there. Platform terms-of-use agreements work in tandem with platform protocols to leverage ad hoc trade secrecy relations into de facto property arrangements with which others—users, app developers, third-party researchers, and so on—have duties not to interfere. The narrative underlying that account of ownership is simple and very, very old. Possession is nine-tenths of the law, and the rest is framing and repetition. Facebook’s ownership of the flows of personal data it collects is based on its control of the flows and on its continued assertion and reassertion of that control. The combination of scale, asserted contractual control, and technical control enacts enclosure of both data and algorithmic logics as an inexorable reality of twenty-first century networked commercial life.
Is “regulation” of Facebook’s data practices necessary? The short answer: Are you kidding me? A longer answer is that both old and new ways of thinking about relations of legal immunity are already working to narrow the range of perceived regulatory options. Some watching the Facebook hearings hoped to hear Zuckerberg formally admit that Facebook is a media company. (They were disappointed.) Such an admission would have undermined Facebook’s claim to statutory immunity under section 230 of the Communications Decency Act. Media companies, however—and, post-Citizens United, other companies too—can invoke a different kind of legal immunity that is rooted in the First Amendment’s guarantee of protection for a robust and uninhibited “marketplace of ideas.”
Internet service providers have long claimed that their manipulations of the information environment are speech-like in their own right. A problem confronting such claims is that the marketplace-of-ideas metaphor is increasingly ill-suited to the reality in which we find ourselves. The metaphor posits that the free flow of ideas will facilitate the exercise of informed and deliberate reason. Contemporary, platform-based media environments have been optimized to detect behavioral cues and to appeal to motivation and emotion on a subconscious level. The result has been a series of object lessons in the law of unintended consequences. It is high time we faced up to the fact that the media technologies that we have are not the technologies of freedom that we say we want.
But here a new metaphoric frame, that of the information laboratory, makes its appearance. Platform businesses have worked steadily to reframe their pervasive manipulations of the information environment in the service of profit extraction as scientific truth-discovery processes. Providers of information services, they argue, are simply experimenting to see which types of information are most useful and most responsive to consumers’ needs and desires. The very same manipulation that undermines the marketplace metaphor is essential to the idea of the information laboratory, which positions the networked information and communications environment as a depoliticized, self-regulating apparatus for “innovation” that is—and should be—untouchable by protective regulation. Facebook has leaned into that effort, answering charges of secret manipulation by reference to “innovation” and offering app developers for its global internet.org project an “Innovation Lab” to test their products. Within the frame of the information laboratory, occasional glitches become matters best left to the experts in the white lab coats to sort out. This explains a lot about the bizarre spectacle of sitting legislators timidly asking a titan of information-age industry what kinds of regulation he would be willing to accept (“I’ll have my team get back to you on that.”). The frame of the information laboratory is highly compatible with a range of self-regulatory responses; it does not invite rigorous external oversight.
If regulation of Facebook (and Google and Amazon and…) is to have a hope of succeeding, it is essential to acknowledge the existence and power of narratives about the public domain of personal information, about appropriation via boilerplate and protocol, and about the information laboratory as a site of immunity from accountability. Those narratives represent the law’s first responses to the demands of information capital, and they are already working to produce new relations of economic production and power.
This post is adapted from Part I of a book manuscript, Between Truth and Power: The Legal Construction of Informational Capitalism (OUP, forthcoming).
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