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    • Facebook and Russian Meddling: Why is anyone Surprised?

      By Gordon Hull

      Facebook’s opaque advertising practices are in the news (again) because it was apparently the vehicle through which some of the Russian attempts to meddle in the 2016 election were routed.  This piece by Sam Biddle on The Intercept is well worth the read, as it makes the case that the public needs to know more about Facebook’s advertising practices. On the one hand, the company has admitted to a little of what happened.  But it studiously has failed to answer most of the relevant questions, hiding behind vague, well-lawyered blog posts. Biddle concludes:

      “It’s reassuring that Facebook is cooperating with the ongoing Russia-related probes. But this is bigger than Russia, bigger than Hillary Clinton, and bigger than 2016. Should Facebook continue to simply allude to its ominous potential rather than sharing it in full, there’s only one good option left: Bring in Mark Zuckerberg and have him sworn in live on C-SPAN. No spokespeople required.”

      This is not a new issue; what Facebook does to your news feed is a paradigmatic example of the black box society at work. Worried? Facebook routinely publishes research designed to exonerate itself from whatever concerns its black box might engender; for example, it published papers in both 2015 and 2012 purporting to prove that it did not contribute to the development of online echo chambers.  As I argued at the time, these results are not just misleading for reasons internal to the research, but because they spread the myth that anything involving big data, machine learning, or a humongous N= figure somehow produces unvarnished, self-interpreting truth.  This serves to insulate companies like Facebook from the scrutiny that accompanies what Tarleton Gillespie identified as the “politics of platforms” back in 2010 and what Helen Nissenbaum and Lucas Introna identified as an analogous issue with portal sites all the way back in 2000.  When a company is the means through which people experience the Internet or their social interactions with other users, how that company curates its data matters.  But two things are certain: the data is carefully curated, and the companies curating the data aren’t talking.  This isn’t to say that they don’t say things indicating what they might be up to; under the guise of proving that the emotional contagion effect could work across remote networks (and did not require face-to-face interaction), Facebook basically telegraphed that it manipulates users’ news feeds to elicit (presumably positive) emotional states.  danah boyd captured a lot of what is at stake, pointing out (again, a while ago) that Facebook presents itself like a public utility, but demands that it be free from the regulations that guarantee that utilities serve the public interest.

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    • Is Intellectual Property actually Property?

      By Gordon Hull

      This sounds like a trick question, but it’s not.  It’s also currently before the Supreme Court, about which more in a moment.  First, however, let me summarize the case for why IP isn’t really “property” in the ordinary sense, even if we use the word.  In a paper from a little more than ten years ago, Michael Carrier proposed that although we claim that IP is a “property,” and treat IP as property in some respects, we do not actually treat it as we do other forms of property.  In the first step, we have come to treat IP as property “not only in the essentially unlimited scope and duration of its initial rights but also in the ubiquitous assertions that IP is absolute property” (12).  This is evident, Carrier suggests, in a number of ways.  In copyright, for example, term length, scope, and subject matter are all increasing.  In patents, enforcement is increasing (especially with the creation of the Federal Circuit, which stopped a lot of forum shopping, although the Eastern District of Texas until very recently functioned as a favored forum of so-called “patent trolls”), and patent rights are more and more viewed not just as innovations, but as investments.  The result should be familiar to anyone familiar with discussions of neoliberal financialization:

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    • Radical White Terrorism as State Policy: Trump, Sovereign Decision and homo sacer

      By Gordon Hull

      As our tin-pot “President” continues his inexorable slide into narcissistic authoritarianism, it is worth noting recent events that establish beyond any residual doubt that radical white terrorism is now official policy.  When historians look at the Trump presidency, assuming we all survive long enough for there to be historians, I suspect last week is going to be a significant one.  It began with Trumps’s remarks after Charlottesville, in which he managed to say that counterprotestors shared in the blame for neo-Nazi violence and that there were many “fine people” hiding in the mob of white supremacists.  These made his own views clear (as though they weren’t already).  But they did not establish state policy.  Events Friday did: the pardoning of former Maricopa Country Sheriff Joe Arpaio, the border patrol’s decision to keep inland border patrol checkpoints open during the evacuation from Hurricane Harvey, and Trump’s apparent decision to end the DACA program.  Together these say: radical white terrorism is above the law, and the undocumented are homines sacri. Foucault remarked at one point that in a biopolitical state “it’s impossible to reconcile law and order because when you try to do so it is only in the form of an integration of law into the state’s [administrative] order” (Power, 117).  In Trump’s America, you get neither law nor order: Trump despises both the rule of law, as evidenced Friday, and the administrative state, as evidenced by his repeated appointment of incompetent, unqualified partisan hacks to head regulatory agencies the very existence of which they oppose.  The theoretical framework through which all of this behavior is intelligible finds its expression in the Nazi jurist Carl Schmitt.

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    • Radical White Terrorism

      By Gordon Hull

      Although they murdered one person, injured 19 others, and celebrated two governments, one of which systematically exterminated over 6 million people in the name of white supremacy, and another that systematically murdered and enslaved millions more, also in the name of white supremacy, members of the far right somehow managed to proudly act like newly liberated victims of something or another (“cultural Marxism?”).    It’s not like Charlottesville should have been a surprise; the FBI and DHS warned about the threat from white supremacists months ago.  White supremacists had been nursing fantasies of running over liberals with cars for quite some time, and racist hate crimes – including, as in Portland, the murder of those who try to stop racist hate crimes – have (unsurprisingly) been on the rise since Trump came to power.  Moreover, what happened last weekend was not about free speech and marches.  It was much more about political violence and intimidation: they showed up in Charlottesville looking for a fight, toting semi-automatic weapons and militia groups so that they might not just exercise their First Amendment rights, but deprive others of their First Amendment rights.

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    • Limitless Home Surveillance by your Vacuum Cleaner

      By Gordon  Hull

      The expansion of the Internet of Things is going to provide a lot playspace for highly intensive and granular corporate surveillance – which is to say it’s going to be a catastrophe for privacy.  Sure, sure, everything will come with a “click here to accept” or comparable “notice and consent” privacy policy that “empowers” individuals to make a rational decision about whether their fridge should communicate with their grocery store when they are running low on milk.  But as Allesandro Acquisti and coauthors note:

      “Uncertainty and context-dependence imply that people cannot always be counted on to navigate the complex trade-offs involving privacy in a self-interested fashion. People are often unaware of the information they are sharing, unaware of how it can be used, and even in the rare situations when they have full knowledge of the consequences of sharing, uncertain about their own preferences. Malleability, in turn, implies that people are easily influenced in what and how much they disclose. Moreover, what they share can be used to influence their emotions, thoughts, and behaviors in many aspects of their lives, as individuals, consumers, and citizens. Although such influence is not always or necessarily malevolent or dangerous, relinquishing control over one’s personal data and over one’s privacy alters the balance of power between those holding the data and those who are the subjects of that data.”

      Indeed, one strongly suspects that’s the point.

      In the meantime, Burger King ran an ad that tried to trick Google Home into running a search for the Whopper.  And now there’s this:

      “High-end models of Roomba, iRobot’s robotic vacuum, collect data as they clean, identifying the locations of your walls and furniture. This helps them avoid crashing into your couch, but it also creates a map of your home that iRobot is considering selling to Amazon, Apple or Google.”

      That’s right: if you have one of those robot vacuum cleaners, it might very well be constructing a highly granular map of your home that will be able to interpret things like what kinds of furniture you have and whether (and how many) kids you have, and so forth.  Expect targeted ads to follow if the data leaves the Roomba.

      Oh, and depending on how courts interpret third party doctrine, that detailed interior map of your home may be freely available to law enforcement. As Justice Sotomayor warns, “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” in the “digital age.”

      In the meantime, I recommend a broom.

    • Intellectual Property Theory Wars (Part 2): IP as social power

      By Gordon Hull

      Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property.  Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of rights-bearing subjects.  Lemley finds such grounding not just wrong but incoherent and irrational, on the grounds that it is a refusal to use empirical evidence.  What I want to do here is dig out some of the textual evidence to support my argument, specifically by looking at some of the work Lemley puts in the “faith-based” camp.  That is, the way Lemley critiques other efforts at IP theory seems to me to exemplify the hold that Chicago has on IP scholarship.  I want to look at his treatment of three such competing views: he finds them completely unintelligible when they use a non-utilitarian form of reason (Merges), he ignores it when they argue from an economic perspective that rejects the basic assumptions of the Chicago school’s development of IP (Amy Kapczynski), and he contorts them into an unpersuasive utilitarian frame when they challenge wealth aggregation as the appropriate standard for evaluation (Madhavi Sunder).  Let’s look at these in reverse order.

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    • Intellectual Property Theory Wars (Part 1)

      By Gordon Hull

      A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property.  In other words, “participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all” (1336).  He adds, “I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith, and because the rationale for doing so is a form of religious belief” (1337).  He treats Robert Merges’ Justifying Intellectual Property (2012) as the paradigmatic example of this phenomenon, though he cites others.  A couple of months ago, Merges’ response, “Against Utilitarian Fundamentalism” appeared, arguing that it was the militant utilitarian position – which as Merges reads it assumes that “to abandon the solid world of empirical foundations is to automatically commit to a stubbornly irrational set of foundations” – that “commits precisely the error that [it] attributes to others” which “takes an extreme position, cutting off conversation and debate” (n5)

      The point I want to make here (in this post and a follow-up) – and I should say that I absolutely agree with Lemley both that IP protections are too strong now, and that there is a good-sized body of evidence that supports this proposition – is that Lemley’s argument presupposes that IP is a form of biopower (or perhaps biopolitical governmentality) insofar as it sets policy, the aim of which is to optimize the welfare of the bios by pushing the “conduct of the conduct” of individuals within it toward higher levels of creative productivity (if you are uncomfortable calling that “biopower,” then it’s fine to stick with “governmentality” here – the point is the contrast with other kinds of thought).  I would also argue, though again not a lot hangs on the distinction here, that Lemley’s framework is almost entirely dependent on law and economics, as it developed out of the University of Chicago from the 1960’s onward.  In this, he is accepting what one might call a neoliberal understanding of intellectual property (on the move to law and economics, see especially William Davies).

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    • More self-promotion: “Toward a critical theory of corporate wellness”

      By Gordon Hull

      Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness."  Here is the abstract:

      In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance.  These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines.  Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale.  After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers and entrenching the view that one belongs to one’s workplace.  At the same time, their selective endorsement of health programs (many scientifically unsupported) produce a social truth of wellness framed as fitness for work.  We conclude by arguing that the public health initiatives occluded by the private sector’s promotion of wellness programs would be a much better investment of resources.

      Springer puts an embargo on the final version of the paper so it can't go up on SSRN yet, but they do invite authors to share a link to the final version  on their site.  Apparently you can read it there for free, and can download if you have institutional access.  The Biosocieties link is here, if you're using a connection with institutional access.

    • Shameless Self-Promotion: “The Subject and Power of Bioethics”

      By Gordon Hull

      I have a new paper up on SSRN, "The Subject and Power of Bioethics," which was invited to a forthcoming issue of the Journal of Ethics, Medicine and Public Health.  The abstract is:

      The present paper argues that late work of Michel Foucault is helpful in understanding contemporary bioethics.  Specifically, Foucault’s writings on biopower and subjectivity are increasingly relevant as we consider the intersection of public policy and clinical ethics in a socio-political context increasingly structured by the demands of neoliberalism.  Although Foucault’s earlier work on the clinical gaze has been important to bioethics, that is no longer as important as his later, incomplete research into power and subjectivity. 

      The paper develops this argument in four steps.  In the first, I look at a classic phenomenological approach to clinical bioethics by Richard Zaner, starting from which I develop a Foucauldian perspective.  In that section I also offer a basic outline of what I take Foucault’s primary theoretical contributions to be by way of an initial explication of the biopower-subjectification nexus.  The following two sections of the paper present exemplary applications of Foucauldian theory to two areas at the intersection of public policy and clinical bioethics.  The first is the procedure for testing women for the BRCA1/2 mutations, mutations that impose on carriers a significant risk of developing breast and ovarian cancer.  A comparison between American and Dutch practices underscores not only the new ways that genetic testing interpret the body, but also the importance of local political and cultural contexts for understanding how the test is presented, administered and managed.  The second is a consideration of the intersection of employee wellness programs and wearable technologies.  In it, I develop Foucault’s thought that subjects in the Christian West have long been encouraged to understand themselves confessionally, offering to authority figures the “truth” about themselves.  I then interpret the compulsory use of wearables as a verification strategy for compliance with wellness programs as exemplary of such confessional strategies.  The final section ties the discussion back to the clinical encounter as Zaner formulates it as an inherently moral encounter structured by vulnerabilities that matter for understanding the selfhood of patients.  Based on the preceding examples, I make the case that American understandings of selfhood are increasingly separated from any sense of publicness, and that this structuring of selfhood is of increasing importance in framing and adequately understanding bioethics today.

    • Travel Ban 2.5, the Camp, and the Airport

      by Gordon Hull

      On Wednesday night, the Trump administration implemented as much of its long promised Muslim Ban as it thought the Supreme Court would allow.  Travelers from a list of six countries who did not have a “bona fide” connection or “close familial relationship” to someone in the U.S. would be banned.  The administration interpreted the Supreme Court’s ruling as restrictively as possible – the Court said that a mother-in-law would be an example of a close familial relationship, but didn’t mention grandparents – so having a grandparent here (or being a grandparent there) isn’t a close familial relationship.  The ruling smacks of arbitrariness and was rolled out as secretly as possible, and it’s not even clear that it actually does much at all. Then again, the original ban also was a poorly-worded, arbitrary mockery of the rule of law.  For example, the “policy” began with zero warning, leaving travelers stranded in airports with no legal options.  So too, the six countries were allegedly named because of their propensity to breed terrorists, but no one from any of them has committed a terrorist act in the U.S. since 2001.  Countries from which terrorists have come – Saudi Arabia – are not on the list.  Some of the countries have no functioning governments, but Iran does.  And so it goes.  That’s what happens when you promise to get rid of Muslims and then realize that you can’t get away with just making that so by campaign promise.

      In Homo Sacer, Agamben declares that the camp (the paradigmatic case of which is the Nazi concentration camp) is the archetype of modern power, suggesting that “the camp as dislocating localization is the hidden matrix of the politics in which we are still living” (175).  He proposes that the model of the camp can be seen in all sorts of institutions: the stadium at Bari where the Italians herded Albanian immigrants, the track where the Vichy herded the Jews before deporting them, and the halls at airports where foreigners asking for refugee status are detained, “all equally [are] camps” (174).  As someone who has read a lot of Adorno, I found this assimilation of airport waiting halls and the Holocaust somewhere between uncomfortable and offensive.  I am still uncomfortable with the comparison, but I do think some of the logic that Agamben is identifying is at work here.  That logic is one in which “the normal order is de facto suspended and in which whether or not atrocities are committed depends not on law but on the civility and ethical sense of the police who temporarily act as sovereign” (174).

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