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    • Our Corrupt Carneades, or the Citizenship Question

      The Trump administration’s effort to add a citizenship question to the 2020 census is a farce attempting to be a tragedy.  The initial claim – that the question was needed to enforce the Voting rights Act – was so obviously pretextual that Justice Roberts had to join the Court’s liberals to strike it down (even though, as Adam Serwer points out, four justices don’t seem to care that they were being lied to).  Printing of the forms commenced, and everybody thought the case was dead, until Trump tweeted new policy and forced the Justice Department attorneys to humiliate themselves in court.  The DOJ then attempted to replace all the attorneys on the case without specifying why – though most informed commentators assumed that this was because the original attorneys felt ethically uncomfortable with whatever they were about to be asked to do, such as reverse themselves on positions that they had insisted upon before.  A federal judge rejected that request today.  There is supposedly a new rationale coming for the question, maybe by way of an unconstitutional executive order, because William Barr says so.  Any minute now.  The difference is that this new rationale will be delivered for self-evidently pretextual reasons, rather than just evidently pretextual ones (Joseph Fishkin outlines what he thinks is wrong with the best argument the DOJ can likely produce here).

      Another development that has gotten less attention is perhaps particularly intriguing.  The government has insisted over and over and over that the census had to be at the printer’s by June 30.  The ACLU has now asked the court system to enforce those words, effectively closing the case.  As Marty Lederman usefully summarizes:

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    • Lockean Data Rhetoric

      One of the standard talking points about data gets summed up in the “data imperative:” that the drive to accumulate data seems insatiable, and that firms will pursue accumulating it well beyond and definable economic end.  There’s a lot of literature on why this might be; I’ve tended to approach the question with the resources of Marx in hand: data is amenable to commodification, and tends to function as a form of primitive accumulation.  One might also argue that data functions as a form of capital.  Undoubtedly there is a case of overdetermination here, and trying to disentangle the reasons why the universe of data (broadly conceived) so readily interacts with capital is worth further reflection.

      In that regard, I’ve been reading David Beer’s excellent new Data Gaze, which looks to develop an understanding of “how data are seen,” with attention to “the implicit limits and parameters that are being set into data before or whilst they are utilized” (6).  In other words, we need to think about what data is, which is to say (following the same sort of path as the Leonelli paper I discussed, but from a different angle), we need to know what data does.  And what data is/does is heavily influenced by how it’s presented in the marketing and other apparatuses of the data industry.  “Data analytics are almost always part of the operation of capitalism and should be seen through the lens of political economy” (14).  Following Foucault’s lead about the “clinical gaze” and how it developed institutionally, Beer proposes of the “data gaze” that:

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    • The Biopolitics of Intellectual Property

      I'm very pleased to be able to say that my new book, The Biopolitics of Intellectual Property, now has a publisher's webpage on Cambridge UP!

      It's currently in production, and should be coming out this winter.  Here's the blurb from the site:

      "As a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters."

    • Gun Profit Litany

      A week ago, two people were killed in a mass shooting at UNC Charlotte that was only one of several shootings in Charlotte that week.

      Yesterday, one student was killed and several injured in a mass shooting at a high school in the Denver suburbs.

      As of now (5/8), there have been 118 mass shootings in 2019.  There have been eleven since the UNC Charlotte shooting.

      In 2018, the gun manufacturing industry made a profit of $1.5 billion.  Gun and ammunition stores made a profit of nearly $500 million.

      Guns killed nearly 40,000 Americans last year.  Wayne LaPierre, the head of the NRA, makes more than $1 million per year, sometimes as much as $5 million.  The CEO’s of gun companies all make millions of dollars a year.  For example, Christopher J. Killoy, president, CEO & director, Sturm, Ruger & Company, received $2.5 million in total compensation in 2016.  P. James Debney, CEO & president, American Outdoor Brands Corporation (formerly Smith & Wesson Holding Corporation) received $5.3 million in 2017.

      Laurence D. Fink, CEO & chairman, Blackrock Inc., the largest institutional shareholder of American Outdoor Brands Corporation, said this in his letter to shareholders in 2018:

      “Society is demanding that companies, both public and private, serve a social purpose. To prosper over time, every company must not only deliver financial performance, but also show how it makes a positive contribution to society. Companies must benefit all of their stakeholders, including shareholders, employees, customers, and the communities in which they operate.”

      Fink’s total compensation in 2016 was $25.5 million.

      The reference in the title of this post is to Allen Ginsberg.

    • Run, Hide, Fight

      On April 30, a man shot and killed two students in a classroom at my university, UNC Charlotte.  He injured four others.

      On May 1, the day after the mass shooting at UNC Charlotte, a man was shot and killed in an apartment complex near the university.  On April 30, the day of the mass shooting at UNC Charlotte, a man was shot and killed outside a Charlotte restaurant.  On the weekend before the mass shooting at UNC Charlotte, three people in Charlotte were shot and killed in separate shootings.   Also on the weekend before the mass shooting at UNC Charlotte, a man walked into a synagogue near San Diego full of people praying.  He shot four people and killed one person before his gun malfunctioned.  He had over 50 rounds of ammunition.  During the week of April 27-May 3, 238 Americans were shot and killed.

      As of May 3, there have been at least 109 mass shootings in the U.S. in 2019.  May 3 is the 123rd day of 2019.

      In 2018, more than 14,000 Americans were shot and killed by someone else.

      Over 22,000 people a year in the U.S. commit suicide with a gun.

      As of May 3, the NRA (I will not link to the NRA, for the same reason that I have not named the shooter at UNC Charlotte) had not tweeted anything about the mass shooting at the university.  On April 29, the day of the mass shooting, the NRA did tweet the speech of Candace Owens of Turning Point USA, complaining (according to the headline) about “leftist and Democrat politicians” who say that “you are responsible when something horrific happens.”

      The gun industry has spent between $19 and $60 million since 2005 funding the NRA.  Many of the nation’s largest gun manufacturers are “corporate partners of the NRA.”  The gun industry spent $3.3 million in lobbying in 2017.  The NRA spends much more than that.

      The gun industry sells between 1 million and 1.5 million guns per month, or 12 to 18 million guns per year.  30% of Americans own a gun, a number which is declining slowly, but 29% of those own five or more.  The gun industry is marketing increasingly lethal products to repeat customers. 

      Gun deaths in 2017 were the highest in at least fifty years by total number, and the highest since the mid-1990s by rate.

      The Protection of Lawful Commerce in Arms Act of 2005 shielded gun manufacturers from liability in most cases when people used their increasingly lethal products to shoot and kill other people.  This disastrous example of regulatory capture must immediately be repealed, in order to force gun manufacturers to design their products to minimize the risk to the thousands of innocent people shot and killed by them every year.  Since they apparently won’t do this on their own, they should be forced to make it a priority.

      Last week, Insys Therapeutics executives were found guilty of criminal conspiracy to profit by getting doctors to prescribe opioid drugs to patients who did not need them, and who would be far more likely to be harmed than helped.  There should be analogous criminal trials for gun industry executives.  It would be a start.

    • Privacy, Obscurity and Keeping Economics Where it Belongs

      By Gordon Hull

      In the New York Times last week, Woodrow Hartzog and Evan Selinger underscore the importance of obscurity to privacy.  They begin with an easy example: most of us do not remember the faces or names of those who stood in line with us the last time we purchased medicine at the drug store.  Presumably, they don’t remember our faces either.  Yet purchasing the drugs was done in full visibility (and invariably recorded on surveillance devices).  Hartzog and Selinger note:

      “Obscurity bridges this privacy gap with the idea that the parts of our lives that are hard or unlikely to be found or understood are relatively safe. It is a combination of the privacy you have in public and the privacy you have in groups. Obscurity is a barrier that can shield you from government, corporate and social snoops. And until lawmakers, corporate leaders and citizens embrace obscurity and move to protect it, your freedom and opportunities to flourish will be in jeopardy.”

      They then adduce several advantages to obscurity: it gives us breathing room to live without fear of intrusion by advertising and the like; it makes intimate relations possible by allowing us to choose with whom to share information; it gives us the space to grow as individuals without surveillance; it protects us from pressures to be conventional; and it fosters civic participation by removing the fear of being on government watch lists.

      The attentive reader will notice – and I assume this Hartzog and Selinger’s point – that obscurity is shown to do a lot of the work that privacy is often said to do.  For example, Julie Cohen argued in an early copyright paper that the “right to read anonymously” is important to civil society and democratic participation because it enables the space to explore different opinions and views without fear of governmental repression.  More generally, she has argued more recently that privacy is necessary as an aspect of subjectivity; as she puts it “privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development” (1907).  Accordingly:

      “But here we must come back to privacy, for the development of critical subjectivity is a realistic goal only to the extent that privacy comes into play. Subjectivity is a function of the interplay between emergent selfhood and social shaping; privacy, which inheres in the interstices of social shaping, is what permits that interplay to occur. Privacy is not a fixed condition that can be distilled to an essential core …. It enables situated subjects to navigate within preexisting cultural and social matrices, creating spaces for the play and the work of self-making.” (1911)

      If this is what privacy is for, then why might obscurity help attain that?  A central problem is that privacy is poorly understood by policymakers, being generally defined in terms of whether someone has chosen to reveal information publicly.  This construction of privacy as an individual right is unfortunate at best.  Companies want our data, and so privacy doctrine construes data as something of value that we then trade for someething else we want – say access to a web service.  The model is congruent with market norms that push toward ever more disclosure and tends to lead to a market failure to meet consumer preferences. Consumers are completely unable to effectuate their preferences, and the model subtly teaches us that this is the right way to view privacy.

      What I want to emphasize here is a point behind this: the construal of privacy as a market transaction pushes toward contracts as a method of enforcement because, as we have known since Hobbes, enforceable contracts are how you overcome the irrationality of trusting those with whom you may not have future interactions.*  Contracts successfully protect rights when the terms are fully disclosed and freely agreed to, and when there is recourse to the state for enforcement when private parties violate those terms.  Viewing privacy through the lens of contract inevitably pushes toward openness: as Judge Posner concluded in an influential economically-based reading, a claim to privacy is likely an effort to withhold information that would make a transaction more efficient.

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    • Why is Data so Easily Commodified (with a detour into fish)?

      By Gordon Hull

      Surely one of the more striking features of the rise of data science is how readily it can be incorporated into processes of capitalist valuation, to the point that data may not just be a commodity – it may also be capital.  At one level, this sounds intuitive enough: one might suggest that data presents information about the world, and that knowledge is valuable.  But this view encounters an immediate limitation in that firms seem to want to accumulate data far beyond their ability to value it.  According to this “data imperative,” data is something to be accumulated, even if one has no clear use for it.  An additional problem is that the companies that accumulate all of this data are generally not so interested in whether it represents the world accurately.  They want it because they want to influence behaviors.

      So what is going on, and is there something about data itself that makes it particularly suitable for capitalist accumulation?  To answer that question, one needs to have a handle on what data is.  Here, a recent paper by Sabina Leonelli is particularly helpful.  Lenoelli defines data as follows:

      “I define ‘data’ as a relational category applied to research outputs that are taken, at specific moments of inquiry, to provide evidence for knowledge claims of interest to the researchers involved. Data thus consist of a specific way of expressing and presenting information, which is produced and/or incorporated in research practices so as to be available as a source of evidence, and whose scientific significance depends on the situation in which it is used. In this view, data do not have truth-value in and of themselves, nor can they be seen as straightforward representations of given phenomena. Rather, data are essentially fungible objects, which are defined by their portability and their prospective usefulness as evidence” (811)

      Leonelli is writing from the perspective of the philosophy of science, and her paper is especially useful in that regard because she is able to embed the definition in recent work in the sociology of science and STS, such as Latour. The key takeaway is that data needs to be defined pragmatically – not what it is, but what it does.  And the key implication of that is that we need to stop thinking of data as representative.  Data is generated for a purpose, and in science, a central purpose is portability:

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    • Big Data: From Human Capital to Fridge Capital

      By Gordon Hull

      In a new paper in Big Data and Society, Jathan Sadowski argues for a shift in how we conceive data.  Typically, it’s viewed as a commodity.  Better, Sadowski argues, to view it as capital.  Following Marx (who offers a basic formula for capital) and Bourdieu (who extends it to cultural and social capital), Sadowski proposes: “Data capital is more than knowledge about the world, it is discrete bits of information that are digitally recorded, machine processable, easily agglomerated, and highly mobile. Like social and cultural capital, data capital is convertible, in certain conditions, to economic capital” (4)  The importance of the formulation is that it allows us to understand why companies spend all their time collecting data even for which they have no planned use: data is subject to the logic of capital accumulation.  Like money, data becomes something the accumulation of which is its own object.  Sadowski: “the imperative, then, is to constantly collect and circulate data by producing commodities that create more data and building infrastructure to manage data. The stream of data must keep flowing and growing.” (4)  That is, “the capitalist is not concerned with the immediate use of a data point or with any single collection, but rather the unceasing flow of data-creating. This point is illustrated by the fact that data is very often collected without specific uses in mind.” (4)

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    • From Marx to Foucault, via Althusser

      By Gordon Hull

      As is well-known, Foucault pretty-much detested orthodox Marxism and the PCF.  At the same time, his relation to Marx’s own thought, and that of Marx’s better commentators, is more complex.  One way to approach this topic is via primitive accumulation (recall here).  Another is by way of intermediaries.  Here I’d like to consider what is, as far as I know, an undiscussed connection in a late essay of Althusser’s (as always, I welcome references).  In a paper in the recent Marx & Foucault anthology, Julien Pallotta outlines what he takes to be evidence that Foucault is responding to Althusser’s “Ideology and Ideological State Apparatuses” (1970) in his Punitive Society lectures (1973).  In particular, Foucault wants to argue that: Althusser doesn’t realize power is constitutive rather than reproductive/productive; that you need to look at more than wage relations to understand the reproduction of capital, and what you’ll discover is a whole process of moralization and control of the worker so that he’s reproduced and ready to work (capital thus needs workers to save against unemployment or disease etc., even as it works to “free” the worker); and there’s thus a process of subjectification which Foucault pursues in a lot more detail than Althusser.

      It seems to me that we have something like an Althusserian response in his later “Marx in his Limits” ([ML] 1978; published in Philosophy of the Encounter, references to this edition).  No, I’m not claiming that Althusser had access to Foucault’s lectures.  In any event, Althusser’s essay is a long and rambling piece, addressing the general idea of a crisis in Marxism.  It also does not reference Foucault directly.  What I am claiming, and what legitimates reading this essay as partly a response to Foucault, is that it seems to move in a Foucauldian direction on the points Pallotta emphasizes.

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    • On the Neoliberal Subjectification of Children

      If you're raising kids now, this won't surprise you.  But it's still depressing.  Basically, the more income inequality a country has, the more intensive parenting is – the more kids are taught that "hard work" is important, and the less that they are taught that "imagination" is.  This holds true between countries (the U.S. and China are more intensive than Sweden and Japan) and within countries over time (the U.S. has been getting worse since the 1980s, and Spain better).