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    • The Normative Valences of Obscurity (Part 1)

      By Gordon Hull

      In a series of articles (and a NYT op-ed; my $.02 on that is here), Woddy Hartzog and several co-authors have been developing the concept of “obscurity” as a partial replacement for “privacy.”  The gist of the argument, as explained by Hartzog and Evan Selinger in a recent anthology piece (“Obscurity and Privacy” (=OP, pagination to the ssrn version)), is that “obscurity is the idea that information is safe – at least to some degree – when it is hard to obtain or understand” (OP 2).  This is because “we should not underestimate how much of a deterrent effort can be” (OP 2), and information that is hard to understand imposes similar costs in terms of effort.  They argue that obscurity functions better as a concept than privacy, in part because it avoids the binarism associated with the public/private dichotomy:

      “Because activities that promote obscurity can limit who monitors our disclosures without being subject to explicit promises of confidentiality, the tendency to classify information in binary terms as either ‘public’ or ‘private’ is inadequate. It lacks the nuance needed to describe a range of empirically observable communicative practices that exist along a continuum” (OP 4)

      The public/private dichotomy has been the object of sustained criticism, in part because it does not track how people live their lives.  For example, U.S. privacy law tends to regard information that an individual has voluntarily disclosed once as no longer private, as if the context of disclosure doesn’t matter at all.  The obscurity argument is designed to start with this basic thought: we share information all the time, and do so with the expectation that others will manage it appropriately.  This is Helen Nissenbaum’s point about the “contextual integrity” of information; it is also how Ari Waldman starts with his recent reformulation of privacy as trust.  The general stability of these information and contextual flows is behind Lior Strahilevitz’s “social networks” account of privacy and its violation, as well as Dan Solove’s account of how suddenly viral spreads of information online occasions the need to rethink reputation.

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    • The Biopolitics of Intellectual Property

      CoverI'm very pleased to announce that my new book, The Biopolitics of Intellectual Property, is now out in print/electronically on Cambridge UP.    Here's a blurb:

      "Intellectual property is power, but what kind of power is it, and what does it do?  Building on the work of Michel Foucault, this study 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.  It 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.  The struggle to conceptualize IP matters, because different regimes of power imagine different kinds of subjects, from the rights-bearing citizen to the economic agent of neoliberalism.  As a central part of the regulation of contemporary economies, 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. The kind of subjects it imagines are the kinds of subjects we become"

       

      The CUP page for the book has not just the text as a whole but the chapters (the main ones are a theoretical discussion, and one each on copyright, trademark and patent), and each of the chapters has an abstract.  For now, here's a little text from the introductory chapter that should give a better idea of what I'm up to.  As you'll see, I want to say something about IP, of course, but also about how I think biopolitics works (in both what I call its earlier, "public," form, and current neoliberalism) and about the fundamental but neglected importance of including law and legal institutions in our genealogical work:

      "The core of my argument is that the kind of power expressed in IP is subtly changing. Initial evidence for this claim is that new doctrinal developments have been difficult to incorporate into traditional models of IP. For example, retroactive  copyright extension is hard to square with a theory that says copyright is about incentives to create new works. Presumably, Walt Disney will be unmotivated by any changes in IP today. Trademark dilution, which allows action against expression that damages a brand’s image in consumers’ minds, is difficult to square with the standard theory that says that trademark is about avoiding consumer confusion. And the patentability of living organisms and (until recently) isolated genetic fragments is difficult to reconcile with the traditional view that products of nature should not receive patent protections. In cases such as these, I will argue, it is necessary to recognize that IP is performing a different and new social function, one that requires a rethinking of the kind of power expressed by IP laws and regulations.

      "I take my theoretical starting point from the work of Michel Foucault, for whom modern power has operated in two basic forms. The first, associated with the social contract tradition, conceptualizes a rights-bearing, juridicial subject, for whom law operates as a system of constraint and coercion. That which law does not prohibit is allowed, and the most important questions revolve around the limits to law’s ability to prohibit. The second, associated with the modern, administrative state, Foucault calls “biopower” or “biopolitics,” and it is concerned with productively managing and even optimizing populations through such measures as public health and education programs. Biopower is thus fundamentally generative. Closely aligned with the rise of capitalism, biopower has emerged as central to the operation of the modern state, which tends to emphasize regulatory agencies and administrative law, even if it also retains a framework of judicial rights.

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    • On the Authorship of Law II: The Social Life of Building Codes

      By Gordon Hull

      As I noted last time, the Supreme Court has decided to take up a case about copyright in state codes.  Specifically, Georgia contracts with Lexis to produce an annotated version of its code, which is the state then blesses with the title “Official Georgia Code Annotated” and claims copyright in.  The question is whether the annotations are part of the code; if they are, they are public domain because the law is public domain.  The 11th Circuit said that they are, because the legislature officially adopts them, courts refer to them, etc.  If it walks like a duck…

      One of the decisions cited in the 11th Circuit opinion cites along the way establishes that model building codes, once incorporated into statute, lose whatever copyright protection they had.  In Veeck v. Southern Building Code Congress International (293 F.3d 791 (5th Cir. 2002)), SBCCI was “a non-profit organization consisting of approximately 14,500 members from government bodies, the construction industry, business and trade associations, students, and colleges and universities.”  SBCCI’s purpose was to develop model building codes for municipal governments to adopt, which the small north Texas towns of Anna and Savoy did.  Veeck ran a web site about northern Texas, and wanted to put the building codes online.  When he had some difficulty getting them from Anna and Savoy, he paid SBCCI $72 for the codes, and then posted that online, correctly labeling them as the building codes of Anna and Savoy.  The question, then, was whether in being enacted as part of the municipal law of Anna and Savoy, the codes lost the copyright protection they enjoyed as products of SBCCI.  The 5th Circuit, relying on the premises that “law” is not copyrightable, the copyright idea/expression dichotomy, and extant caselaw, ruled that the codes were no longer copyrightable.

      If the Georgia case attempted to think through what the conceptual underpinnings of the thesis that law is not copyrightable, SBCCI offers a chance to think about what that means in practice, and how it interacts with the more commercial IP system.  Indeed, one of SBCCI’s arguments in favor of protection was quite precisely the commercial incentives justification for copyright.  I want to approach all this somewhat elliptically.  Quite some time ago, I used Deleuze’s critique of Platonism (in Difference and Repetition and Logic of Sense) to suggest that the original/copy distinction in copyright functions like the eidos/copy distinction in Platonism.  For Deleuze this distinction isn’t about metaphysics so much as police work: it’s about knowing how to distinguish legitimate copies from illegitimate simulacra.  Deleuze writes:

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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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