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    • On the Authorship of Law: Copyright, Foucault, and Hobbes

      There is an interesting copyright case before the Supreme Court this term, Georgia v. Public Resource.org. It is settled law that official edicts of the government – statutory texts, judicial opinions, agency rules – are not copyrightable. More about that in a moment. In this case, Georgia entered into a contract with Lexis to produce an annotated version of its code. The state gets editorial control, and Lexis gets exclusive publication rights. The product is the “Official Georgia Code Annotated” and is generally cited as the authoritative statement of Georgia law. Public Resource made copies of the OGCA publicly available for free, including the annotations. The state claims copyright over the annotations and sued to enjoin Public Resource.  The question before the court is thus whether the annotations to state law are copyrightable, even given that the statutory text is not.

      The case follows an appeal from a substantial Eleventh Circuit opinion, finding that the OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). There’s a lot to say, and much depends on the peculiar arrangement Georgia has with Lexis.  For example, the OGCA both costs money and is taken to be authoritative over the unannotated version of the text made available for free; it is both the results of a heavily regulated legislative process and is routinely cited by Courts as authoritative in interpreting the law. What I want to focus on here, however, is the 11th Circuit’s discussion of authorship.

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    • Abusive Uses of Big Data, College Admissions edition

      Per an investigative report in the Washington Post, growing numbers of colleges are using cookies and other website tracking devices to profile potential students and selectively recruit, including sometimes by income level (there’s a long discussion of how Mississippi State appears to be doing this).  And of course they do so by spending lots of scarce money on for-profit consulting companies which then do the data analytics work to try to guess who is likely to apply, attend, etc.  Some of the worst offenders appear to be schools facing declining enrollments and/or state funds, which therefore have to recruit paying students particularly aggressively.

      Along the way, they’re using all the tricks in the big data company playbook.  For example, Capture Higher Ed does the following for its clients:

      “Each visitor to the university site gets a cookie, which sends Capture information including that person’s Internet protocol address, the type of computer and browser they are using, what time of day they visited the site and which pages within the site they clicked on …. Every time that person returns to the site, Capture learns more information about them, such as their interest in athletics or the amount of time they spend on financial aid pages, according to promotional videos on the company’s website.  Initially, the cookies identify each visitor by the IP address, a unique code associated with a computer’s Internet connection, but Capture also offers software tools to match the cookie data with people’s real identities, according to the company’s promotional videos. Colleges do this by sending marketing emails to thousands of prospective students, inviting them to click on a hyperlink inside the message for more information about a particular topic, according to the videos.  When a student clicks on the link, Capture learns which email address is associated with which IP address, connecting the student’s real identity to the college’s snapshot of the student’s Web browsing history, Capture executives said in one of the videos”

      And many of them seem to have the same arrogant entitlement about their data collection that the big data companies do: when asked about students who might not want to be tracked, the CIO at SUNY Buffalo State College replied that “You have a choice of not interacting at all.”

      I wonder how many scholarships they could fund with the money that they funnel into those private consultants?

    • Hobbes, Biopolitics, Security, part 2: Spinoza

      By Gordon Hull

      Last time, following a new paper by Andrea Rossi, I suggested that Hobbes’s reformulation of the Stoic “security” in terms that we would recognize as biopolitical – oriented toward human flourishing, and not just survival – enables him to reformulate the Ciceronian salus populi suprema lex (“the welfare of the people is the supreme law”).  As I suggested, this renders Hobbes a different thinker from what Foucault thought he was.  Here, I want to suggest that it also shows that one of the usual divisions between Hobbes and Spinoza (roughly: Hobbes is a juridical absolutist and a theorist of potestas; Spinoza is a democrat and theorist of potentia) just doesn’t hold much water.  In other words, the sharp division drawn by Negri regarding the “permanence and opposition of two lines” in modernity, “the absolutist one, following Hobbes, and the democratic one, espousing Spinoza” (Porcelain Workshop, 52) – gets in the way of a more productive engagement between the two.  It’s not that Hobbes and Spinoza come to the same political conclusions (they clearly do not) – the interest is in how similar they are  prior to those conclusions.

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    • Hobbes, Biopolitics, Security

      By Gordon Hull

      Foucault aligns Hobbes with juridical power, not biopower.  Juridical power is repressive and takes life away; it is epitomized by monarchy.  Biopower, in contrast, is power that “exerts a positive influence on life, that endeavors to administer, optimize, and multiply it, subjecting it to precise controls and comprehensive regulations” (HS 1, 137).  Foucault then famously says that “the representation of power has remained under the spell of monarchy. In political thought and analysis, we still / have not cut off the head of the king” (HS1, 88-89).  In Society must be Defended, he argues that:

      “Rather than asking ourselves what the sovereign looks like from on high, we should be trying to discover how multiple bodies, forces, energies, matters, desires, thoughts, and so on are gradually, progressively, actually and materially constituted as subjects, or as the subject.  To grasp the material agency of subjugation insofar as it constitutes subjects would, if you like, be to do precisely the opposite of what Hobbes was trying to do in Leviathan” (SMD 28).

      Well, no. I think this is a misreading of Hobbes, and in my Hobbes book, I argued that it’s productive to see Hobbes as a sort of proto-theorist of biopolitics in the Foucauldian sense. How so?  My argument was basically that Hobbes actually rejects a juridical model of power that’s focused on the king, and instead focuses on how the commonwealth can bolster the population.  More precisely, Hobbes starts by rejecting the Aristotelian zoon politikon.  In De Cive, Hobbes claims that “man is made fit for society not by nature, but by training” (DC I.2, note).  This is a direct repudiation of the Aristotelian dictum that “the political art does not make men but takes them from nature and uses them” (Politics 1258a22).  On my reading, Hobbes shifts focus to how to make people fit for society, a project that involves their subjectification as rational subjects.  This requires, above all, careful regulation of the system of signification at work in the commonwealth, because stability there is key to getting inside people’s heads.  After all, Hobbesian people actually lack an intellectual faculty – intellect specifically reduces to imagination. The pithiest pronouncement of this thesis is in De Homine, where Hobbes announces that “intellect is in fact imagination, but which arises from the settled signification of words [est enim intellectus imaginatio quidem, sed quae oritur ex verborum significatione constituta]” (DH 10.1; OL II, 89).  This means that if you can control external stimuli, you have a pretty good shot at getting bad thoughts out of people’s heads.

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    • NC GOP Forgets 9/11

      That's right, the party of flag and God and country found something more important to do today than remembering 9/11: making sure that poor North Carolinians don't get health insurance.  The current state budget does not include Medicaid expansion because the GOP so hates Obama that insuring 600,000+ people and creating 30,000+ jobs in the process, almost entirely on the dime of the Feds, just seems like a bad idea.  But the Republicans lost their veto-proof majorities in 2018, so this time when Democratic Governor Roy Cooper vetoed it, they couldn't just steamroll him.  There's been a two-month stalemate since, largely featuring GOP scheduling override votes, dangling various bits of pork spending in front of democrats, not getting enough defectors, and then abruptly canceling the vote.

      Then today in the NC House, the GOP assured everyone that there would be no votes because of 9/11.  When they realized that a number of democrats were out commemorating 9/11 or otherwise absent, they – SURPRISE! – voted to override Cooper's veto.

      This legislature is beyond shameless, but it's not even the voting that is perhaps the most shameless thing they did today.  No, that award goes to the sanctimonious bit of hypocritcal drivel from one Rep. Jason Saine, who is "appalled that anyone in our country would stop going about their normal business on this day. When we stop being a beacon of freedom, hope and democracy, then the terrorists win."  Yep, 'cuz nothing shines that light of freedom, hope and democracy brighter than a minority party that holds power only because of unconstitutionally gerrymandered districts depriving poor people of the ability to see the doctor!

      Imagine if Nancy Pelosi conducted a vote for something important on 9/11, after telling the GOP that she wouldn't.

      The budget is now in the hands of the Senate, where the GOP only needs one democratic defector to continue on its gerrymandered way.

    • Big Win on Gerrymandering!

      The awful NC legislature, largely the product of breathtakingly effective partisan gerrymandering, may finally be about to get more competitive.  A lower Court in NC just unanimously ruled that the GOP maps violated the state constitution (which keeps it out of federal courts), and the state GOP apparently does not plan to appeal (virtually all observers think that they would have lost in the NC Supreme Court, after the GOP outsmarted itself and lost a Supreme Court seat to an anti-gerrymandering progressive).  The Court gave the legislature two weeks to produce new maps, and set some very stringent conditions on how they could do it.

      Vox has the story here.

      This is very, very good news!

    • Algorithmic Housing Discrimination

      It appears that HUD, as part of the general initiative to stop enforcing the housing laws it’s supposed to enforce, is poised to allow landlords to hide behind computer algorithms as they discriminate against minority tenants. As Andrew Selbst – who co-authored one of the foundational pieces on exactly this sort of problem – describes the proposed rule change in Slate:

      “The proposal, while billed as a mere update to bring regulations in line with the Supreme Court’s 2015 decision, creates entirely new rules for landlords using algorithms. There are functionally two separate defenses being created. First, the proposal allows landlords to use an algorithm as long as its inputs are not “substitutes or close proxies” for protected characteristics and as long as it’s predictive of what it purports to predict—or a “neutral third party” certifies that fact. So if a hypothetical landlord decides to predict number of noise complaints as a proxy for difficult tenants, using music streaming data they somehow obtained, they might find a correlation between preferred musical genre and how difficult a tenant is. Of course, musical preference is not a substitute or close proxy for race, but an algorithm that equates a preference for hip-hop with noise complaints is probably picking up on race as a factor in frequency of noise complaints. Unlike under existing law, under this rule, a landlord would be off the hook even where there may be less discriminatory alternatives. Second, the landlord is also immunized from any discrimination claim if he uses a tool developed and maintained by a recognized third party. These safe harbors supposedly ensure that a model is legitimate and the landlord has not himself “caused” the discriminatory outcome”

      A brief discrimination backgrounder: legally, discrimination can be on the basis of disparate intent, or disparate impact.  Disparate intent is what it sounds like: I discriminate against black tenants if I decide not to rent to any, because they are black.  As you can imagine, this sort of discrimination is hard to prove, because not so many people are dumb enough to advertise it.  The more standard strategy is to mask discrimination behind proxies that name race (or some other protected category) without actually naming it.  Given residential segregation, for example, zip code is a pretty decent proxy for race, and so a landlord might systematically disfavor applicants whose previous address is in a specific zip code.  That’s also not ok, because although the rule doesn’t (directly) “intend” to discriminate, the impact of this policy is disparate between racial groups, and so is the same as if it did.

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    • Lessons from Agre on Privacy as Capture (Part 2): Can Foucault Get Past Panopticism?

      By Gordon Hull

      A couple of weeks ago, I noted my newly discovered appreciation for Philip Agre’s “Surveillance and Capture” and outlined why I think his development of capture (and retreat from surveillance) is particularly applicable to the privacy concerns surrounding big data.  Here, I’d like to suggest that Agre’s distinction is also helpful in understanding a frequently remarked limitation in Foucault.  The limitation is this: a Foucauldian model of disciplinary power treats Bentham’s panopticon as its ideal image.  That image, and the model it subtends, has come under sustained critique over the last twenty years in a scholarship inspired by Deleuze.  Let me start with a review before getting to what capture can tell us about Foucault and surveillance.

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    • One Small Step for Trans Rights.  And a Moment for Dan Bishop Awareness.

      North Carolina took a small step today towards undoing its disgraceful HB2 legislation passed by the state’s Republican legislature back in 2016 as an effort to stop Charlotte’s attempt to allow trans people to use the bathroom matching their gender identity.  Per a consent decree today, the state has agreed that no provision in HB2’s successor, HB142, can be read to prohibit trans people from using the bathroom matching their gender identity.

      Two cheers for small victories!  It would of course mean a lot more if HB142 weren’t such a crappy law.  Although it was advertised by the legislature as a repeal to HB2, thank you, all done  discriminating, it did nothing of the sort.  The replacement – and these things are still part of state law – locks into place an explicit refusal to offer employment and other civil rights protections to LGBTQ individuals in state law, and it forbids other governmental entities in the state (cities, schools, universities) from going further on other employment laws. So this is very much a partial victory.

      In the meantime, one of the original architects of HB2, the egregious state senator Dan Bishop, is running for the state’s currently vacant House of Representatives seat.  Why is this seat vacant?  Well, the state elections board refused to certify the results of last election because of serious issues with ballot tampering emanating from Republican Mark Harris’ campaign (see here, and here to get started).  So we get a do-over.  Harris decided not to run for health reasons and now we have Bishop, who won the Republican primary between himself and a guy who honestly liked to dress up as Boss Hogg.  And who is Dan Bishop?

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    • Philip Agre on Privacy and Big Data (part 1)

      By Gordon Hull

      A current paper by Mireille Hildebrandt sent me to a paper from 1994 that I’m embarrassed to say I hadn’t read before: Philip Agre’s “Surveillance and Capture.”  Agre’s paper has been cited over 300 times, but it’s missing in a lot of the privacy literature I know.  After reading it, I’ve decided that’s a mistake, and it’s time to make amends.  I’ll begin by saying why I think Hildebrandt is exactly right to bring the paper up in a context of big data.

      Agre starts with quotidian examples of tracking, things like employee ID cards that let systems know where they are, to UPS package tracking.  The core argument of Agre’s paper is that there’s two conceptual models of privacy that need to be distinguished in making sense of phenomena like these: one, the one that we all talk about all the time, is surveillance.  The surveillance model grew out of experience with state bureaucracies, particularly in the Soviet bloc, and features visual metaphors (typically Orwell and Bentham); assumes that the watching is nondisruptive and secret; involves territorial metaphors like invasion of space, which tend to then lead to a dichotomy between coercion and consent; involves centralized orchestration; and is identified with the state.  This model, though ubiquitous, isn’t the only or even the best one.  Agre spends most of his time developing the alternative model, though he notes that “when applied as the sole framework of computing and privacy, the surveillance model can lead to oversimplified analysis” and suggests that it lends itself to caricature and easy dismissals such that “genuinely worrisome developments can be seen as ‘not so bad’ simply for lacking the overt horrors of Orwell’s dystopia” (116).   It’s not hard to say that Agre got this one right: whether it’s the well-trodden problems with notice-and-consent or the stubborn persistence of the “I’ve got nothing to hide” deflection, the surveillance model isn’t adequate to privacy worries now.

      The second model, which Agre ties to computer science and information systems management, is built around the idea of “capture.”  The capture model also has five characteristics, which Agre develops as a contrast with surveillance.  Capture: uses linguistic metaphors for human activities; assumes that linguistic parsing of activities is active intervention; defaults to structural metaphors; is decentralized; and is driven by to reconstruct human activity “through [its] assimilation to a transcendent (‘virtual’) order of mathematical formalism” (107).  The core concept here is grammar: the basic mechanism of capture is to pick a set of atomic elements (people, UPS packages) and to then develop a grammar that describes their possible movements or changes.  This model is then imposed – sometimes coercively – on the activities it purports to describe, mechanisms are used to then track and measure the activity according to the grammar; the system can then be further calibrated.

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