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    • 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).

    • Biometeric Chicanery

      Let’s say the state passes a law that says that restaurants may not put worms in hamburgers, and that customers can sue those that do. Your kids eat at the local Annelids franchise on the way home from school, and you later discover that the burgers contain worms. You sue the restaurant, and in response, it says that since your kids didn’t get sick from the experience, it only “technically” violated the law, and you therefore have no basis to either collect damages or force them to stop. That is, on the face of it, a pretty stupid construction of the law, since it would make it totally unenforceable. It is also, more or less, how Facebook, Google, and Six Flags Great America think you should read the Illinois Biometric Privacy Information Act (BIPA).

      In a unanimous ruling yesterday, the Illinois Supreme Court said otherwise. The Act regulates companies that collect biometric information like fingerprints and face scans. In the case at hand, the amusement park used thumbprints to identify customers who had bought a season pass, in order to admit them quickly and to stop people from sharing passes (you know the second reason is the real one; since when do amusement parks worry about long lines?). If the company wants to collect such information, it has to inform customers what they’re doing in writing, and get affirmative consent. In particular, the company must “inform[] the subject or the subject’s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used” (cited in para 20).

      This is notice and consent privacy as it should be! There’s a lot of reasons why I don’t think notice and consent privacy actually works – I called it a “successful failure” because the main effect is to teach us that privacy is something we should sell off but without actually protecting privacy. Nobody knows what they’re consenting to, the privacy notices are impossible and long and incomprehensible, and so on. Six Flags et al don’t even get that far: they argue that they don’t actually have to follow the law. So for them, privacy should just be a failure.

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    • A Mysterious Scandal

      By Gordon Hull

      The Supreme Court just granted cert in an important trademark case, in re Brunetti.  The case concerns whether Eric Brunetti can get federal trademark registration for his FUCT line of clothing.  Although Brunetti can of course market the clothing in any case, and can claim common law trademark rights, federal registration confers a number of benefits, especially if the owner ends up litigating the mark.  A little background.

      Section 2 of the Lanham Act specifies a few things that are not eligible for registration, such as official insignia of governmental entities and the identifying name, signature or portrait of a living person without their consent.  The statute also prohibits registration of a mark which:

      Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute (15 USC 1052(a)).

      In denying registration to scandalous or disparaging material, the Lanham Act seems to be generally biopolitical in that it is concerned with optimizing the population: independently of its viability in commerce, putting governmental imprimatur on a scandalous or disparaging mark is viewed as bad for the polity.  In the case of disparaging marks, the idea is that the use of the mark would be damaging to those targeted by the mark in question.  The First Amendment means that the government cannot stop such use, but it is also not required to reward the use with the benefits of trademark registration, and so the policy explicitly values a vision of civil discourse over commercial benefit.

      Various marks were denied registration under the disparagement clause, including both those that repeat slurs assumed to disparage others (the NFL’s Washington “Redskins”) and those where members of targeted groups intend to reappropriate the terms, as in “Dykes on Bikes.”  In Matal v. Tam (2017), the Supreme Court ruled on First Amendment grounds that the government did not have the right to refuse registration to disparaging marks.  The case pitted Simon Tam, an Asian-American who wanted to register the name of his band – the “Slants” – in order to reclaim a racial slur, against the PTO, which argued that the term disparaged Asian-Americans, many of whom would find it offensive.  After the decision, Tam got his band name and the Redskins got their registration back.

      Citing the Tam decision, the Federal Circuit ruled at the end of 2017 in Brunetti that the ban on scandalous marks also violated the First Amendment.

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    • A Note on Derrida and Law (and Drucilla Cornell)

      By Gordon Hull

      I pass along the following with minimal additional comment, as it fills in a historical detail that I’d not known.  It’s from Peter Goodrich, a very prominent critical legal theorist at Cardozo Law School, on “the role that Derrida played at Cardozo, and less expectedly the part played by the Law School in radicalizing Derrida:”

      “It was after becoming a Fellow at Cardozo that he shifted to a more political trajectory and engaged with the fight to free Mandela and end apartheid. I think he would have been surprised to learn that Cardozo radicalized him but why not? It was a two-way street, and recollecting the atmosphere and passions that circumambulated 55 Fifth Avenue back then, I think it is fair to say that Drucilla Cornell who was here at the time was a political powerhouse that few could avoid if they walked through the corridors where the faculty live” (603)

      The Derrida piece that emerges from the symposium is “Force of Law,” which appeared in the (1990) issue of the Cardozo Law Review to emerge from the symposium.  Derrida’s piece revolves around his reading of Benjamin’s “Critique of Violence.”  It emphasizes a central point also found in CLS: that law is power.  Here is Derrida: “the word “enforceability” reminds us that there is no such thing as law that doesn’t imply in itself, a priori, in the analytic structure of its concept, the possibility of being ‘enforced,’ applied by force” (925)

      How we are to understand Derrida as a political writer is of course a big topic; in a late interview, he distinguishes his own work in “deconstruction” from a tradition running from Luther to Heidegger, suggesting that “the ‘deconstruction’ I attempt is not that deconstruction, it’s definitely more ‘political’ too, differently political; but it would take too many words to explain this” (Paper Machine, 115).  He elsewhere insists that a “political dimension” was “decipherable in all my texts, even the oldest ones’ (Paper Machine, 152).  I’ve tried to argue that this is true for his 1968 “Plato’s Pharmacy,” and that there is a specific politics involved in ratcheting him to phenomenology.  Still, it’s hard to miss that his writings from the early 1990s forward are more obviously political than the earlier ones.  In any case, these connections can be complex; if American CLS nudged Derrida toward a more direct engagement with politics, that potentiality had to be there in the first place.

      Goodrich closes with an anecdote:

      “Back in 1987 I was in Eastern Europe, behind the Iron Curtain, in Russian occupied Budapest. I had been invited to lecture but when the Marxist professoriate of Etvos Lorand University Law School met me and discussed my planned lecture, they rapidly realized that this was not a good idea and cancelled the class. Sensible folks. I had a day free and decided to travel to Sopron, a city on the border with Austria where my host had a sister willing to show me round. I took the train and a copy of Jacques Derrida, The Postcard, as my reading. It did not occur to me that I needed a passport to travel inside the country but close to Sopron the police entered the train and asked for ID. My only document was The Postcard, which they scrutinized, discussed and then shaking their heads indicated that it was not enough and arrested me for a while until my host came and vouched for me. When I was next on a panel with Derrida, I told him the story. He paused and pondered for a moment and then said “I am sorry that my book was of no help.” And of course it was useless, but in the best of senses. It gave no comfort to the authorities. It provided no identification of me. It made no demand. And yet I read it on the train, I read it in the police cell. I finished it on my return. Socrates and Freud were comfortingly to hand. At random, though I am fond of quoting it: “In history, this is my hypothesis, epistolary fictions multiply with each new crisis of destination.””

       

       

    • On the Political Economy of Social Media: Dispossession of the Other

      By Gordon Hull

       

      The Washington Post has a disturbing story about how “lies become truth in online America.”  It narrates the story of two individuals.  One spends his time in Maine, dishing out deliberately fake news stories designed to troll those on the right by saying completely absurd things and then watching them blindly repeat them as truths.  Christopher Blair and his friends then occasionally wade into comments sections to chastise the vulnerable, as well as baiting people into saying racist things and getting their social media accounts removed and so on.  “Nothing on this page is real” says one of the apparently fourteen (!) disclaimers on his site; he gets up to 6 million hits from believers a month.  Blair would make up pretty much anything that aligns with stuff circulating on the far right:

      “In the last two years on his page, America’s Last Line of Defense, Blair had made up stories about California instituting sharia, former president Bill Clinton becoming a serial killer, undocumented immigrants defacing Mount Rushmore, and former president Barack Obama dodging the Vietnam draft when he was 9. “Share if you’re outraged!” his posts often read, and thousands of people on Facebook had clicked “like” and then “share,” most of whom did not recognize his posts as satire. Instead, Blair’s page had become one of the most popular on Facebook among Trump-supporting conservatives over 55”

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    • The Internet of Prison People

      By Gordon Hull

      In what seems like a distant, more innocent time in surveillance (viz. 2003), Andy Clark was able  to use as an example in his Natural Born Cyborgs an implanted tracking chip for pets.  Does your cat tend to wander off?  Now you can know where Whiskers is at all times! (no doubt taking a nap in the sun, and not earning his keep catching mice)  Clark’s point was to argue that we are all tool-using creatures by nature, to the point that when we speak of our “minds,” that term really needs to include at least some of the tools we use.  So the extended mind hypothesis was the point of the book, and pet-tracking an example, but Clark’s optimism was evidenced in the way that he dumped concerns like privacy together into a final chapter.  It's that ability to put the worries in the last chapter that seems dated now.

      Of course, these days RFID chips are everywhere – now, apparently, in the bodies of employees (h/t dmf).  The story needs to be read, but basically an entrepreneur named Tim Westby started out by marketing RFID vending machines to prisons because prison administrators liked convenience in their contracts and because the machines could operate with a high markup (what are the inmates going to do, choose a different supplier of soda?).  Twenty years later, the business has grown to putting RFID tags on its employees and marketing smart phone apps that utilize “ping notifications and geo-fences that keep kids from leaving pre-defined areas”

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