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    • Facebook as a Hostile Foreign Power

      This piece, on Facebook's behaving more like an autocratic, hostile state than a large company, is worth the read.  Here's an excerpt:

      "Perhaps Americans have become so cynical that they have given up on defending their freedom from surveillance, manipulation, and exploitation. But if Russia or China were taking the exact same actions to undermine democracy [that FB is], Americans would surely feel differently. Seeing Facebook as a hostile foreign power could force people to acknowledge what they’re participating in, and what they’re giving up, when they log in. In the end it doesn’t really matter what Facebook is; it matters what Facebook is doing."

    • Charles Mills (1951-2021)

      I was both saddened and stunned this morning to read of the passing of Charles Mills.  I first met him at a SPEP years ago; I was having lunch at some random sandwich shop with friends.  He knew one of us, and asked if he could join.  Nevermind that we were all junior.  I managed to find him at a few later conferences, to join a meal or even just to say hi.  He was generous, warm and wickedly funny when he wanted to be.  And the stunning clarity with which he could call out ideal philosophy and other systems of domination is like nothing else I’ve read.

      Daily Nous has more, and links to a really touching remembrance by Liam Kofi Bright.

    • New Paper: “The Death of the Data Subject”

      Shameless self-promotion dept… here's the preprint for my new paper, "The Death of the Data Subject," now forthcoming in Law, Culture and the Humanities.  And here's the abstract:

      This paper situates the data privacy debate in the context of what I call the death of the data subject.  My central claim is that concept of a rights-bearing data subject is being pulled in two contradictory directions at once, and that simultaneous attention to these is necessary to understand and resist the extractive practices of the data industry. Specifically, it is necessary to treat the problems facing the data subject structurally, rather than by narrowly attempting to vindicate its rights.  On the one hand, the data industry argues that subjects of biometric identification lack legal standing to pursue claims in court, and Facebook recently denied that that its facial recognition software recognizes faces.  On the other hand, industry takes consent to terms of service and arbitration clauses to create enforceable legal subject positions, while using promises of personalization to create a phenomenological subject that is unaware of the extent to which it is being manipulated.  Data subjects thus have no legal existence when it is a matter of corporate liability, but legal accountability when it is a matter of their own liability.  Successful reform should address the power asymmetries between individuals and data companies that enable this structural disempowerment.

       

       

    • When does the Supreme Court lose its legitimacy?

      And what does that mean?  Now is a good time to ask.  The Court has let stand a 5th Circuit decision upholding a Texas law that is plainly unconstitutional under current SCOTUS jurisprudence (it bans abortion at 6 weeks) and involves an enforcement mechanism that comes straight from Stalin’s playbook (it allows individuals to sue people they suspect of assisting a woman of obtaining an abortion).  This piece on Vox runs through how deeply perverse the Texas law in question in, how thoroughly Trump has corrupted the 5th Circuit, and how alarming SCOTUS inaction is.

      In Planned Parenthood v. Casey – which, along with Roe is apparently being overruled in Texas without a hearing and without a reasoned opinion – the Court favorably cites earlier opinion to the effect that the Court is supposed to give reasons when it overturns its precedent:

      "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the Government. No misconception could do more lasting injury to this Court and to the system of law which it is our abiding mission to serve"

      Justice O’Connor adds:

      “The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court's power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people's acceptance of the Judiciary as fit to determine what the Nation's law means and to declare what it demands.  The underlying substance of this legitimacy is of course the warrant for the Court's decisions in the Constitution and the lesser sources of legal principle on which the Court draws. That substance is expressed in the Court's opinions, and our contemporary understanding is such that a decision without principled justification would be no judicial act at all. But even when justification is furnished by apposite legal principle, something more is required. Because not every conscientious claim of principled justification will be accepted as such, the justification claimed must be beyond dispute. The Court must take care to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation” (emphasis added)

      O’Connor adds that if “the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe” that “only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance.”

      The Court’s so-called “shadow docket” – consequential decisions rendered in orders for cases not heard, as for example prioritizing religious claims over public health – has been on the rise over the last couple of years, and commentators have worried about the damage this does to the rule of law as an institution.  In the case of abortion, the Court has a case on the docket that would give it the opportunity to overturn Roe; it could have waited until then (and avoided the need to validate Texas’ enforcement mechanism).  You could argue that the Court didn’t “decide” anything last night, but it was faced with a clearly erroneous 5th Circuit decision that it let stand.  I don’t see how last night’s failure to enjoin the Texas law doesn’t utterly gut its legitimacy in the sense articulated in Casey.  Texas just banned abortion, and SCOTUS offered no justification at all in letting the law stand.

      Again, Casey: “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question.”  Court legitimacy is important:

      “It is true that diminished legitimacy may be restored, but only slowly. Unlike the political branches, a Court thus weakened could not seek to regain its position with a new mandate from the voters, and even if the Court could somehow go to the polls, the loss of its principled character could not be retrieved by the casting of so many votes. Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court's legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court's concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.”

      So much for Justice Roberts’ efforts to preserve the Court as an institution.

    • No Standing for You! (part 2)

      By Gordon Hull

      Last time, I started to look at the details of the Supreme Court’s recent TransUnion decision, which ruled that a credit agency that wrongly labeled someone as a match for a terrorist watch list (using only first and last names, with no effort at verification.  Sorry “John Smith”…) could only be sued if that person could show that the credit agency also distributed this information to others.  So basically you have to lose a job opportunity or a mortgage approval, and then you can sue.  There is nothing you can do to pre-emptively force them to correct the problem.  Worse, this ruling is in defiance of explicit statutory language in the FCRA.  The opinion directly says that SCOTUS can override Congressional determination of when something is legally actionable, and (just to be contrary, I guess), it does so in the name of separation of powers.

      So what are we to make of this? As the various critical theories will remind you, law is a form of power. One thing that’s happening here is the protection of the powerful from the weak. With some high profile exceptions (like Justice Gorsuch’s endorsement of LGBTQ rights), the Roberts court has fairly consistently sided with the powerful, like corrupt politicians and conservative dark money donors by whittling away at laws designed to rein them in. One limitation to that thesis is to argue, as Erwin Chemerinsky has, that “Throughout history the court has overwhelmingly favored corporate power over employees, consumers, and the public, and has favored government power over individuals’ rights.” While it’s tempting to leave it at that here, I think there’s more nuance to be had. So two points.

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    • No Standing for You! (part 1)

      By Gordon Hull

      In one of the Seinfeld episodes, the proprietor of a popular lunch stop would deny service to customers who offended his arbitrary sensibilities with a loud “No Soup for You!” This is basically the outcome of the Supreme Court’s June decision on standing, TransUnion v. Ramirez. “Standing” in this sense refers to access to the federal legal system; to simplify, to be able to sue somebody, you need to show that you’ve suffered a “concrete” injury. A number of recent standing cases have been about the outer limits of “concrete.” In principle, privacy harms can be concrete, but SCOTUS has been making standing harder, particularly in data breach cases.

      And so it goes here. Per a 5-4 opinion authored by Justice Kavanaugh, you don’t have standing to sue a credit agency for flagging you as a terrorist, unless you can show that they also disseminated that information to somebody else. This opinion explicitly overrides a Congressional determination that you do, in fact, have standing in cases like that, arrogating to the Court the right to decide when Congress is and is not allowed to establish when statutory rights are actionable. This was too much for Justice Thomas, who, joined by the court’s liberals, points out in dissent that this both violates separation of powers in the name of preserving it, and turns historical standing doctrine on its head. As Dan Solove and Danielle Citron put it in a sharp critique that builds on Thomas’ dissent, TransUnion is “an activist decision that nullifies Congress’s power to protect consumers and that enables courts to rewrite privacy laws to alter how they are enforced.”

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    • Foucault, Marx and Prophecy Part 3: On Bureaucrats  

      By Gordon Hull

      In a previous post, I noted that Foucault strongly implies in a 1978 interview that his communist detractors are bureaucrats, and tied that to an earlier interview with Maoists in which he suggests that structuring populist tribunals on the model of bourgeois courts would fail to break with the power structure of the bourgeois court system: the model of impartiality is intrinsically bourgeois, and so importing that model into communist popular tribunals would iterate the very power structures that were to be replaced.  Here I want to flesh out a little more some of the resonances of an accusation of bureaucracy in the context of 1970s Marx debates in France.   I should say in advance that these are notes more than a complete assessment, designed to pick out highlights.  The back and forth polemics of Marxists are byzantine, and we should all be grateful that Foucault sets it as a rule not to engage in them.  Here I will mainly draw from Trotsky’s critique of Stalin and Lenin, with a closing gesture to a representative text of the French far-left that emerged in the aftermath of the 1968 student uprisings.

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    • Patently Harmful

      My further thoughts on the background through which we should interpret Covid patent waivers, at Real Life.

    • Foucault, Marx and Prophecy, Part 2: The Role of the Intellectual

      By Gordon Hull

      In a previous post, I made the case for reading Foucault’s 1978 comments on Marxism (especially in the Yoshimoto interview) in the context of theory/practice questions raised by the re-evaluation of Marx’s 11th “Thesis on Feuerbach.”  Here I want to flesh out that position a little more, starting with reference to another 1978 piece.  Shortly after the Japan interviews, Foucault writes a response to the Italian communist Massimo Cacciari’s “Rationality and Irrationality of Politics in Delezue and Foucault” (the piece appeared in Italian; as far as I can tell, there is no translation of it).  Much of Foucault’s response is dedicated to accusing Cacciari of using the tactics of Stalinism: “always having a unique adversary” (created in this case by amalgamating Foucault, Deleuze and the New Philosophers), of engaging in a trial-like procedure, of assimilating ‘the enemy’ and danger, of reducing thought immediately to a system, and so forth.

      He then defends the argument of Discipline and Punish, in particular with reference to the understanding of power; Foucault says he “would like precisely to show this heterogeneity of power, that is to say how it is always born of something other than itself” (D&E #238, II, 651 (2 vol. ed, 2001]).  He underscores that there is no metaphysics of power here, no “power with a capital P.”  Rather, “it is necessary to put the relations of power back into the interior of struggles and not suppose that there is, on the one hand, power, and on the other, that on which it is exercised, and that the struggle unfolds between power and non-power” (632).  In other words, Foucault’s entire effort is to resist the sort of abstraction that the Theses on Feuerbach warn against reifying.  The goal is rather to write a text that does something, that constitutes an intervention or a tool.  In language similar to that of the Japan interviews, and against the accusation that he is merely telling a story, Foucault proposes:

      “In reality, what I am trying to do, and therein lies the difficulty of the attempt, is to work out an interpretation, a reading of a certain reality, which is such that, on the one hand, this interpretation is able to produce effects of truth and that, on the other hand, these effects of truth can become instruments at the heart of possible struggles.  To speak the truth so that it can be attacked [dire la vérité pour qu’elle soit attaquable].  It is a reality of possible struggles that I seek to make appear.” (633)

      A few sentences later, he argues that “the effect of the truth that I seek to produce resides in this manner of showing that the real is polemical” (633).  However, “I do not speak of the current situation.  I effect an interpretation of history, and the problem – but I do not resolve it – is to know what the possible utilization of these analyses in the current situation is” (633-4).

      This then leads to a very clear statement of the role of the intellectual.  “It is absolutely true that, when I write a book, I refuse to take a prophetic position which consists in saying to people: here is what you ought to do, or again, this is good, that is not.”  Instead, the goal is to show in a general way “it seems to me that these things have happened, but I describe them in such a manner that views of possible lines of attack are traced.  But in this I do not force or constrain anyone to attack” (634).  What to actually do – and he refers to his own decisions about throwing himself into certain political actions – “is a problem of groups, of physical and personal engagement,” and not of books.  Indeed, bossy Marxists are not radical: “one is not radical because one has pronounced some formulas; no, radicality is physical, radicality concerns existence” (634).

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    • The Necropolitics of Intellectual Property

      By Gordon Hull

      Update (4/30).  Essential piece by Amy Kapczynski (who is one of my sources below).  Also see this Twitter thread by Dennis Crouch of PatentlyO, characterizing the issue as one of technology transfer more generally than patents specifically.  Trade secrets are an important issue – like patents, they allow companies to control access to innovation.  Companies also will use a strategy of combining patents and trade secrets in order to maximize their revenue (so if they think something can't be patented, they might claim it as a trade secret).  The theory behind trade secrets is based more in contracts than property, which means that they are arguably even worse if you're worried about neoliberalism, since they are an even further privatization of law and policy.

      Update (4/29).  Here's more on IP and other barriers to vaccine distribution in India (and elsewhere):

      • The Modi government is incompetent at every level, and India's base capacity was lower than it estimated.
      • Most of the world wants IP waivers.  The U.S. and Europe and a few other countries do not. 
      • This WaPo piece argues that waivers are bad but licensing (preferably voluntary, but with compulsory as a stick) is good.  Note that licensing is not what Bill Gates is talking about, as far as I can tell, which is buying vaccines and donating.

      In my Biopolitics of Intellectual Property, I argue that IP policy has shifted from what I call a “public biopolitics” model to a neoliberal version.  In its briefest form: the public version treats IP as a necessary but limited monopoly to promote public goods, and the neoliberal version focuses on private wealth gain through proprietization (I summarize the argument here).

      Something that I don’t particularly talk about in the book, but that one knows from Foucault, is that biopolitics comes with its inverse, necropolitics: if biopolitics is about promoting life and health for the “population,” it is also about who is allowed to die.  As Foucault puts it, “the ancient right to take life or let live was replaced by a power to foster life or disallow it to the point of death [au vieux droit de faire mourir ou de laisser vivre s'est substitué un pouvoir de faire vivre ou de rejeter dans la mort]” (History of Sexuality I, 138).  Governmental power goes from the right to kill to the power to cause people to live; death becomes something into which one is literally “thrown back.”  The leading examples of necropolitics are political, as for example Foucault’s discussion of state racism (of which Nazism is the apotheosis) in Society must be Defended.  Achille Mbembe’s “Necropolitics” article spends time on how post-colonial African states have dismantled populations, which are “disaggregated into rebels, child soldiers, victims or refugees, or civilians incapacitated by mutilation or simply massacred on the model of ancient sacrifices” (34).  Building on these, Ege Selin Islekel’s brilliant treatment of the disappeared in Turkey notes that in necropolitical spaces, “the entire content and the fact of living, constituted by the ethical, political, and epistemological conditions of life, are subsumed under death.”

      However, as Ute Tellman has recently demonstrated, the political treatment of biopolitics needs to take seriously how it is co-configured with the economy.  On Tellman’s account, the notion of economic scarcity first appears in Malthus (it was missing in Smith!) as a way to police the behavior of the poor (and “savages” in the colonies) by training them to think in terms of futurity.  For Malthus, the poor have to be trained not to eat and procreate their way into oblivion by forcing them to think in terms of economic rationality.  This brings us to the neoliberal justification of IP, which is partly underpinned by the Schumpeterian thesis that innovation is to be pursued at all costs, because the gains of future innovation (“dynamic efficiency”) are more important than whatever short-term distribution problems (“static inefficiencies”) they entail.  Thus, more or less, is Harold Demsetz’s reply to Kenneth Arrow. 

      It also subtends the argument being given for why IP rights around Covid vaccines shouldn’t be licensed to the poor in India (side note: Malthus served as professor at the East India Company College).  Developing countries have proposed a waiver of related IP rights to ensure the rapid production of generic Covid vaccines, and Pharma has responded with an army of lobbyists to explain that no, IP can’t possibly be the problem with Covid vaccine distribution, and it would be much better for philanthropies to purchase lots of drugs and then distribute them.  Other unrelated IP industries have followed with their own lobbyists.  Whatever other difficulties exist in getting vaccinations to people in developing countries, it seems hard to deny that insisting on IP rights and thereby limiting production of the drugs isn’t one of them.  Allowing generics – especially in India and Brazil – increases capacity.

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