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    • Return to “What is an Author”

      By Gordon Hull

      I’m teaching a Foucault seminar this term, and one of the things I’m trying to do is get better on the doxography of his essays.  That led me to a discovery about “What is an Author” that I’m going to share on the (hopefully not hubristic) assumption that other folks didn’t know it either.  The essay has been of interest to me for a while, largely because of my work on intellectual property.  There, the link between copyright and the juridico-political function of authorship Foucault identifies is fairly clear, and has been ably explored in the context of trademark by Laura Heymann.

      What I didn’t know is that Foucault’s essay was originally presented as a seminar (Feb. 1969) – with responses from the likes of Lucien Goldmann and Lacan.  The version translated into English and that makes its way into the Rabinow-edited Foucault Reader and subsequent English editions is based on a revised version that Foucault gave the following year in Buffalo.  As a result, we don’t get the commentaries.  The version in Dits & Écrits I (#69) is thus worth a look for a few reasons.

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    • Big Data + Health Insurance = Bad

      Big data can – and very often is – used to discriminate.  It was only a matter of time before health insurers started using it to predict who might be more likely to get sick, and to charge them more (yes, they've figured out how to circumvent the ACA).  ProPublica has the story here.

      Be very afraid, especially if you recently moved to a smaller house or lived on a poor street growing up.  And remember that automated analysis of Facebook likes indicates that if you like hello Kitty, you're more likely to be depressed.  And that can be $$$.

    • Chicago Antitrust and Neoliberalism’s Blindspots

      By Gordon Hull

      As Foucault emphasizes in Birth of Biopolitics, one of the signal moves in American neoliberalism is the extension of economic analysis into all aspects of life.  As he puts it, the American neoliberals “try to use the market economy and the typical analyses of the market economy to decipher non-market relationships and phenomena which are not strictly and specifically economic but what we call social phenomena” (BB 239-40).  This “absolute generalization” of the market form “functions … as a principle of intelligibility and a principle of decipherment of social relationships and individual behavior,” enabling a “sort of economic analysis of the non-economic” (BB 243).  Foucault uses the neoliberal analysis of crime as exemplary.  Rather than pursuing the panoptic dream of zero-crime, or earlier theories about “the delinquent” as a character type, the neoliberal treats crime as an economic activity: we are all potential criminals; the key to lowering crime is to raise its cost.  This has sometimes surprising results, one of the most important of which is that one should not spend more social resources on combatting crime than the crime costs.

      For example, Jeff Sessions and his stupid “zero-tolerance” policy are not just barbaric: they are economically irrational.  Tinpot Dictator must have an inkling of this, which is why he tries to say that all immigrants are gang members, so as to make them look more costly than they are. Sort of like ticking-time-bomb scenarios try to make torture look efficient. Yes, I know he is motivated by racism. Posner & co. never let conscious motives get in the way of a good description.  You just assume that Tinpot has stable preferences (racism and narcissism and more racism), and then “all human behavior can be viewed as involving participants who maximize their utility from a stable set of preferences” (Essence of Becker, 13).

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    • Foucault’s “Analytic Philosophy of Politics”

      By Gordon Hull

      The current issue of Foucault Studies contains the first English translation of a lecture Foucault gave in Japan in 1978.  This “Analytic Philosophy of Politics” is essential reading if you have an interest in the transition between Foucault’s “power” and “ethics” work and/or his later understanding of power and resistance.  The Tokyo lecture underscores a profound continuity in his thought along a number of lines. Here are a few things that emerged for me on a first reading (there are also references to Confucianism that I am totally unqualified to address, so I will simply note that they are present):

      (1) Foucault proposes that the question of power emerges in the wake of fascism and Stalinism, which he treats as both singular but as tied to “a whole series of mechanisms that already existed within social and political systems” (189).  That is, movements now challenge “this overproduction of power that Stalinism and fascism clearly manifested in its stark and monstrous state” (189).  The emphasis on Stalinism and fascism corresponds to the lectures that bookend Society must be Defended a few years prior, where Foucault begins by critiquing “totalitarian” discourses in the form of orthodox Marxism and closes with an analysis of state racism (exemplified by the Nazis) as a form of biopower.  So too, at the beginning of SMD, he refers to some of the same movements – anti-psychiatry, the recovery of “subjugated knowledges” that are the examples in the Tokyo lecture.

      (2) Second, Foucault is interested in the role of the philosopher and philosophy.  This is not a surprise given his other interviews and essays on the topic, but it’s worth mentioning that he explicitly poses as a problem that philosophies of liberation presented during the 19c have become tools of oppression in the 20th.  As he puts it, “each and every time these philosophies of freedom gave birth to forms of power that, whether in the guise of terror, bureaucracy, or even bureaucratic terror, were the very opposite of the regime of freedom, the very opposite of freedom as history” (191).  As with the critique of Marxism and Freudianism at the start of SMD, the text here underscores why Foucault is skeptical of revolutionary discourses and thinks they may be a part of the problem, not the solution.  Thus, “one should no longer imagine that one can escape relations of power all at once, globally, massively, through a sort of radical rupture or a flight without return” (193).

      In this, Foucault is on a page very similar to Deleuze, at least on this point.  A moment in an interview of Deleuze by Antonio Negri is instructive. In it, Negri asks about a “tragic note” he detects in Thousand Plateaus. Deleuze responds with a gesture to Primo Levi and a “shame at being human,” of being tainted with what people have done. “This,” he adds, “is one of the most powerful incentives toward philosophy, and it’s what makes all philosophy political…. What’s so shameful is that we’ve no sure way of maintaining becomings, or still more of arousing them, even within ourselves” (Negotiations, 171-3).

      Instead of wanting to know if power is good or bad, etc., “one should simply try to relieve the question of power of all the moral and juridical overloads that one has placed on it, and ask the following naïve question, which has not been posed so often … what do power relations fundamentally consist in?”  In so doing, the job of the philosopher is to “make visible what precisely is visible, which is to say to make appear what is so close, so immediate, so intimately connected with ourselves that we cannot perceive it” (192).  The remark certainly recalls the early Heidegger on the question of Being, but it’s here put in service of understanding power as a form of subjectification: the later part of the Tokyo lecture is precisely interested in pastoral power as a technique of individuation.

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    • Huuuge Win for Privacy

      By Gordon Hull

      Santa Claus knows when you’ve been sleeping, knows when you’re awake, and knows if you’ve been bad or good.  Your phone knows all of that too, because it knows exactly where you are.  It then sends all that information to your carrier, which keeps it in its logs for five years.  Stay out late drinking last night?  Your phone knows. Had an affair a couple of years ago? Your phone knows that, too. Get up early for a workout and then work?  Yep, your phone knows that too.  Up until today, it was pretty easy for the police to know it as well, as they were able to subpoena your phone’s geolocation records from your phone carrier.  Under the “third party doctrine” as articulated primarily in Smith v. Maryland (1978), you lose any expectation of privacy over information that you "voluntarily" hand over to someone else – this this case, your phone carrier.  In a 5-4 opinion today, Chief Justice Roberts and the four liberals on the Court refused to apply third party doctrine to phone location data.  Justice Roberts writes:

      “We decline to extend Smith and Miller [a case where the government subpoenaed bank records- GH] to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search”

      As Roberts noted at the start of the opinion (which, btw, is a model of legal writing), the Fourth Amendment was originally motivated in substantial part by concern over generalized warrants.  His conclusion is therefore not a surprise.  Indeed, tapping phone records pretty much achieves everything a general warrant hoped for; as Roberts notes, “a cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user” (internal citations omitted).  And of course it does so with absolutely zero police effort.  When the GDR Stasi wanted to track your every move, they at least had to assign an officer to do it.  Here, the data is collected automatically and without human intervention.

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    • The Big Data Train Chugs On, Predictive Personality Edition

      By Gordon Hull

      One of the things that marketers like about big data is that they can personalize ads.  That operation is getting increasingly sophisticated.  We’ve known for a while that basic personality traits (like introversion/extraversion) can be predicted from Facebook likes.  I missed this paper when it came out, but some of the same authors as the initial Facebook “likes” paper have now done the inevitable follow-up.  By targeting Facebook ads on the basis of openness and extraversion (where the correlation with likes is fairly robust), they were able to make users 1.54 times more likely to make a purchase (thus about 40% more likely) than with non-“psychologically-tailored” advertising.  The study size, as with most research on FB, is enormous – the study reached some 3.5 million users (a point the authors use to try to defuse some objections).  The authors duly note the murky ethical issues that emerge: on the one hand, you could proactively try to assist people who show signs of depression; on the other hand, weaknesses like susceptibility to addictive gambling or dubious political targeting could be exploited.  That observation is pretty obvious now, in the wake of Cambridge Analytics.  Two other takeaways stood out more to me.  First, the study predicted personality on the basis of only one like.  As the authors note, that means the study likely underestimates the potential effect of psychological targeting.  Second, the authors emphasize that a point that a lot of us have been trying to make for a while: that these results undermine a lot of the current regulatory strategy for privacy. I’ll let them speak:

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    • Malthus’ Marshmallow

      By Gordon Hull

      We’ve all heard of a version of the experiment: you set a kid down with a marshmallow, and tell him that if he can sit there and not eat it for a while, he can have two.  Some kids can do it, and others can’t.  A famous paper suggests that whether the child has the willpower to wait is predictive of his future success in life.  Apparently, not so much.  According to a piece by Jessica McCrory Calarco in the Atlantic, new research casts this finding into doubt.  It seems that the original study enrolled fewer than 90 children, all of them selected from Stanford’s lab school.  Let’s just call that an unrepresentative sample.  A new, larger and more representative study concludes that willpower isn’t what’s driving the result; it’s socioeconomic status.  As Calarco puts it, “the capacity to hold out for a second marshmallow is shaped in large part by a child’s social and economic background—and, in turn, that that background, not the ability to delay gratification, is what’s behind kids’ long-term success.”  For example, once you factor in whether the mother has a college degree or not, the children’s ability to wait wasn’t predictive:

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    • Hypernudges as Subjectification

      By Gordon Hull

      In a recent paper, Karen Yeung introduces the concept of a ‘hypernudge’ as a way to capture the way Big Data intensifies design-based ‘nudges’ as a form of regulation.  Yeung’s discussion draws partly from discussions of Internet regulation, partly from literature on design, and partly from legal literature around privacy and big data.  Yeung’s basic argument is that, in the context of big data:

      “Despite the complexity and sophistication of their underlying algorithmic processes, these applications ultimately rely on a deceptively simple design-based mechanism of influence – ‘nudge.’ By configuring and thereby personalizing the user’s informational choice context, typically through algorithmic analysis of data streams from multiple sources claiming to offer predictive insights concerning the habits, preferences and interests of targeted individuals (such as those used by online consumer product recommendation engines), these nudges channel user choices in directions preferred by the choice architect through processes that are subtle, unobtrusive, yet extraordinarily powerful” (119)

      Ordinary nudging technologies – she cites the humble speed bump – are static.  In contrast, the sorts of nudges provided by data analytics are dynamic, continuously and invisibly updating the choices a user sees.  They work both to make decisions automatically based on what users have done or can be predicted to do, and by guiding decision-making by influencing what choices are available (and how they are presented).  Because of both the dynamism and invisibility, data-driven nudges can be incredibly powerful in comparison to their static cousins. 

      Yeung’s paper also enables one to advance a couple of points in the context of information ethics.

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    • Charlotte/Mecklenburg votes against 287(g)

      Yesterday was a big news day.  The biggest story was probably our Tinpot Dictator’s decision to unilaterally violate the Iranian nuclear deal.  In addition to alienating almost everyone not named Bibi Netanyahu or John Bolton, and making the world less safe, the main thing this proves is that Trump can’t see more than ten minutes into the future: very soon, he will supposedly be sitting down with North Korea’s Kim Kong Un to… negotiate a nuclear deal.  What a wonderful time to petulantly scream that the U.S. does not abide by its nuclear deals!  Back home, if you pay attention to local elections, you’ll have heard that in the Republican primary that includes a sizable part of Charlotte, U.S. House incumbent Robert Pittinger narrowly lost to Rev. Mark Harris, a far right preacher who led the state’s 2012 anti-gay-marriage constitutional amendment.  Conventional wisdom is that Harris will be easier for Democratic nominee McReady to challenge in the fall.

      The news that I suspect didn’t make it out of the local area is that Mecklenburg County’s Sheriff Irwin Carmichael just lost – badly – his re-election bid.  There were three candidates in the Democratic primary, and nobody on the Republican ticket, so the winner last night won the office.  Carmichael had defended the County’s use of 287(g) rules that allowed the ICE agents access to those detained in Mecklenburg County (which includes Charlotte; Charlotte police do not participate in  287(g)) jails.  His support for that program is, by all accounts, why he lost. Both of his opponents came out against it, and there was a strong grass-roots mobilization campaign.  The winner also plans to roll back two of Carmichael’s ending in-person visits with inmates and condoning the use of solitary confinement. 

      That’s a good day for those of us who care about criminal justice reform and a reminder that local politics can matter.

    • Are Patents Property? Depends on what you mean…

      By Gordon Hull

      The Supreme Court issued a landmark patent ruling yesterday in Oil States v. Greene.  The most recent major revision to the Patent statute specifies that the validity of patents – in terms of whether they meet conditions of patentability (utility, non-obviousness and novelty – the opinion does not directly specify whether questions about patentable subject matters are included here, but it cites §101, so I think that’s probably covered too)  – can be challenged and resolved through an administrative inter partes review.  This review process has a number of procedural requirements, but at the end of the day the decision reached can result in a patent revocation and is conducted entirely within the administrative apparatus of the PTO.  The question posed is therefore whether the government can revoke a patent without going through the courts.  The answer delivered in a 7-2 opinion by Justice Thomas, is yes.  I haven’t digested the opinion fully, and there was another, somewhat related case yesterday that I haven’t even started on.  That said, Oil States is a very interesting decision, including the dissent authored by Justice Gorsuch.  Here’s some initial reflections on it (I did some context-setting earlier: see here).  I’ll first talk about the opinion, and then end with a thought about the underlying policy problem, for which inter partes review is basically a band-aid solution.

      The basic argument of the opinion is that patents aren’t private property so much as they are a public franchise, and as such aren’t the sort of thing the Constitution is talking about when it says property claims have to run through the judicial branch.  As Thomas argues, “the decision to grant a patent is a matter involving public rights—specifically, the grant of a public franchise” (op. slip, 7, his emphasis).  As 19c case law establishes, a patent “take[s] from the public rights of immense value, and bestow[s] them upon the patentee” (op slip, 8), by granting a right of exclusion (traditionally the core of property).  It does so to incentivize invention.  It then follows logically that the decision to remove a patent is also a matter of public franchise.  Thomas cites a 1966 ruling that administrative review covers the “issuance of patents whose effects are to remove existent knowledge from the public domain” (8-9).  In other words, if the patent doesn’t cover something novel, it takes knowledge that was available to the public and privatizes it.

      The ruling strikes me as exemplifying what I call “public biopolitics,” which is basically the pre-neoliberal version that Foucault identifies (especially in Security, Territory, Population and Birth of Biopolitics) with classic liberalism.  They don’t quote Mill, but the opinion is the sort of thing that the Mill of the Principles of Political Economy could get on board with. For example, Mill justifies the departure from laissez faire on the grounds that inventions are of tremendous public value, but require nurturing by the state. Similar instances of justified state intervention include public funding of things like universities (p. 968).  He also explains what happens in terms of a publicly-granted patent license: “this is not making the commodity dear for [the inventor’s] benefit, but merely postponing a part of the increased cheapness which the public owe to the inventor, in order to compensate and reward him for the service” (p. 928). Thus, even in the case of patents, Mill conceives of the production of knowledge as the production of something that benefits the public generally, and which the application of laissez-faire will not supply. The point is not to internalize externalities for the sake of the inventor.  This sense of knowledge as a public good is specific to modern liberalism.  As Foucault puts is, “activity that may go beyond this pure and simple subsistence will in fact be produced, distributed, divided up, and put in circulation in such a way that the state really can draw its strength from it” (STP 326).

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