New APPS: Art, Politics, Philosophy, Science

COVID and Geolocation: Google edition

Geolocation data is getting increasing attention as a way of tracking social distancing in particular.  Google has just released a bunch of its geolocation data, which tracks changes in trips to retail, parks and other places.

In the meantime, a new paper in Science says that a good contact-tracing App, if sufficiently robust and adequately deployed, could avoid the need for lock-downs. 

Of related interest, Zeynep Tufekci has a smart piece in The Atlantic, pointing out that disease modeling isn't useful so much for producing truth or knowledge, but as a guide for how to avoid worst outcomes.  This seems absolutely right to me, and is in line the way health policy folks are pursuing what I've called a maximin strategy.

Late Capitalism Makes COVID-19 Worse

By Gordon Hull

I know there’s a lot of ways to develop that thesis!  Let me focus on one: the fetishization of “efficiency,” and its corollary, just-in-time supply chains.  In a recent piece in The Atlantic, Helen Lewis argues that a lot of the disruption in consumer goods (toilet paper, etc.) is initially attributable not to hoarding, but tiny, unanticipated fluctuations in demand.  Stores don’t carry extra product in the back any more; rather, they keep their shelves stocked by way of a very elaborate, data-intensive logistical operation that delivers enough product to keep items on the shelf, but no more.  Hence the name “just-in-time” capitalism.  Why would you prefer such a system?  Excess stock is inefficient: it just sits there taking up space when it could be sold elsewhere, and you had to pay people to make it, even though you’re not getting paid for selling the product that’s sitting in the back of the store.

The innovations to supply-chain that enable just-in-time capitalism go well beyond the idea that stores should keep minimal stock, however.  If neoliberal financialization has taken a lot of the theoretical attention since 2008, it’s important to remember that financialization hasn’t been the only point of late capitalism.  For example, a pair of McKinsey reports in the early 2000s looked back on productivity growth in the late 1990s, widely attributed at the time to developments in IT.  As one argues, IT was not the cause: within the sectors that grew, “the most important cause of the productivity acceleration after 1995 was fundamental changes in the way companies deliver products and services.”  In “The Wal-Mart Effect,” McKinsey’s Bradford Johnson argues that:

“More than half of the productivity acceleration in the retailing of general merchandise can be explained by only two syllables: Wal-Mart. In 1987, Wal-Mart had a market share of just 9 percent but was 40 percent more productive than its competitors as measured by real sales per employee (the measure used for all company-level analyses in this study). A variety of Wal-Mart innovations, both large and small, are now industry standards. Wal-Mart created the large-scale, or “big-box,” format; “everyday low prices”; electronic data interchange (EDI) with suppliers; and the strategy of expanding around central distribution centers. These innovations allowed the company to pass its savings on to customers. By 1995, it commanded a market share of 27 percent and had widened its productivity edge to 48 percent” (McKinsey Quarterly 2002:1, p. 41).

In other words, our current retail scene – the one existing before Amazon – is attributable to Wal-Mart.  The efficacy of this logistical innovation was evident in the immediate aftermath of Hurricane Katrina, in which Wal-Mart was able to deploy trucks of aid to the New Orleans area much faster the George W. Bush’s mismanaged FEMA.   Amazon, in a sense, represents the intensification of this trend: maintaining brick-and-mortar stores is inefficient, if the logistical operation can be made sufficiently nimble and efficient.

Following Spring Breakers

As I noted earlier, cellphone tracking data is proving an interesting tool in trying to understand the spread of COVID-19.  You'll recall that Florida beaches featured a whole bunch of tightly-packed WOO-HOO SPRING BREAKers.  And that they then presumably left the state.  Where did they go?  Here's a map based on cellphone data.

Thanks Gov. DeSantis, who I never even had a chance to vote against!

The epistemology of COVID-19 – indicators edition

By Gordon Hull

A recent piece in the Guardian points to the limitations of models in understanding the spread of COVID-19: principally, those models are often not based on reliable data specific to the disease, so they can be wildly off.  As I argued earlier, the bottom line is that we really have no idea what we’re doing, and that lack of knowledge is an important reason why we’re having to adopt non-risk-based strategies like maximin to deal with the virus spread.  The decision to move to those strategies needs to be understood as a (bio)political one (just as the general preference for risk is); that they are not risk-based is probably part of why right-wingers are deciding it’s time to go “back to work.” It’s not that they have any better idea what’s going on than anybody else, they’ve just adopted a different political epistemology, and have decided that their idea of economics is more important than everybody else’s view of human life.

In the middle of any efforts at modeling or analysis are indicators.  These have been the subject of a fair amount of recent interest, as for example the recent (2015) anthology, The World of Indicators.  As the editors note in the book’s introduction, “indicators are typically presented as taken-for-granted facts. Yet, indicators are not neutral representations of the world, but novel epistemic objects of regulation, domination, experimentation and critique” (5).  More specifically, there is a fundamentally socio-political process at work behind any indicator.  We can all see the point with indicators like “women’s social equality,” since that concept means different things to different people.  So too, the point is clear enough in psychological categories like “normal” or “deviant” or “personality disorder,” as Foucault made clear.

Less obviously, it applies in more narrowly medical situations as well.  Consider malaria.  Malaria is a thing in that it’s a disease caused by a parasite.  Everyone knows that – it’s not an essentially-contested concept like “privacy.” And yet, as Rene Gerrets indicates in his contribution to the anthology, similar problems apply to malaria tracking in sub-Saharan Africa. 

COVID-19 reading

Stuart Elden at Progressive Geographies is curating a list of "geographers, sociologists, philosophers etc. on covid 19."

There's a ton of fascinating material there, and he is updating it regularly.

Big Data, Cellphones and COVID-19: Social Distancing Scorecard

At company called unacast has used cellphone tracking data to produce a “Social Distancing Scorecard.”  It breaks down the US by state and county to measure the distances that cellphones travel as a proxy for social distancing.  It then grades areas from A to F based on the percentage decrease. Obviously this is a rough proxy social distancing, but it’s currently the best we have.

It’s interesting to note geographical disparities.  Eyeballing it, urban areas are doing more social distancing than rural ones.  The Mountain West is doing less.  All of that tracks what we know about how different demographics and political orientations are responding to the virus.  Interestingly, Alaska is doing much more than most other areas, with the exception of the far north. 

My own Mecklenburg County (which includes the city of Charlotte, though the metropolitan area encompasses several other counties, and which just issued its stay-at-home order today) gets an ‘A,’ for a reduction of 43%, despite the County Health Director’s repeatedly telling media that people aren’t adhering to social distancing guidelines.  Next-door union County gets a ‘B,’ but that’s for a 40% reduction.  There are a couple of counties in the eastern part of the state that have seen an increase.  The state as a whole gets a ‘B’ for a 36% reduction – probably in part because the governor has been quite proactive in pushing social distancing.  Ohio is down 40%, presumably also because of a proactive governor.  It wouldn’t be hard to use this data to track the effects of specific policy interventions.

If you go down to Florida, the Miami area (and the cities up the coast) are all down 50% or so.  The Panhandle, where a lot of WOO HOO SPRING BREAK happens are doing a lot less distancing.

And so it goes.  The Washington Post has a write-up that gets at some of the privacy and other issues.  It should be noted that social media data is already useful in public health surveillance.  To cite only one example, one study found that content analysis of Twitter was able to predict community cardiovascular disease mortality – a significant result, since the average age of Twitter users is quite low, and (as the authors put it) “the people tweeting are not the people dying,”

Why We Are Not Bare Life: What's wrong with Agamben’s Thoughts on Coronavirus

By Gordon Hull

In a follow-up to a controversial piece in which he argued (in late February) that the social distancing and quarantining in Italy presented the temptation to universalize the state of exception, Agamben says this:

“Fear is a bad counsellor, but it makes us see many things we pretended not to see. The first thing the wave of panic that’s paralysed the country has clearly shown is that our society no longer believes in anything but naked life. It is evident that Italians are prepared to sacrifice practically everything – normal living conditions, social relations, work, even friendships and religious or political beliefs – to avoid the danger of falling ill. The naked life, and the fear of losing it, is not something that brings men and women together, but something that blinds and separates them. Other human beings, like those in the plague described by Manzoni, are now seen only as potential contaminators to be avoided at all costs or at least to keep at a distance of at least one metre. The dead – our dead – have no right to a funeral and it’s not clear what happens to the corpses of our loved ones. Our fellow humans have been erased and it’s odd that the Churches remain silent on this point. What will human relations become in a country that will be accustomed to living in this way for who knows how long? And what is a society with no other value other than survival?”

To be sure, there are and will be bad actors.  William Barr’s DOJ has apparently seen the epidemic as a good time for a power grab (notably, one that has been sharply critiqued from both the right and the left).  Ohio seems to be using it as a pretext to stop abortions.  So – and this will be my point – we must always be vigilant about the expansion of emergency powers.

But when you have a leitmotif, you stick with it, and so Agamben reiterates his basic thesis about the combination of state of exception and bare life:

COVID-19 links

It seems that Trump is descending into his usual self-aggrandizement and racism - somebody must have slipped something into his Diet Coke for Monday's (semi) coherent performance.   Unfortunately, that's now worn off.  If you haven't seen it, the Washington Post skewers the blatant hypocrisy of Fox News.  Also, the Trump administration was given the opportunity to think about pandemic response during the transition from the Obama administration.  Most of the people involved are no longer with the administration, even the subset of them who managed to act interested.

One of my arguments last time was that the U.S. social fabric was ill-equipped to handle COVID-19.  Here's a nice, short piece that condenses a lot of the reasons why the social safety net is a disaster.  For something more optimistic about the social fabric, read this.

I also suggested that the point of suppression and curve flattening needed to be viewed as stalling for time.  I focused on the development of treatments; over in The Atlantic, Aaron E. Carroll and Ashish Jha point out that the time could be used to put in place a comprehensive testing regime that would enable more targeted suppression efforts, instead of the blanket lockdowns we have now.  They also emphasize that if we succeed in slowing the disease now, we urgently need to avoid developing a false sense of security from that fact.

Finally, this is the first piece I've seen that details the gender dynamics of the coronavirus response.

 

The Epistemology of COVID-19

As communal life comes screeching to a collective halt for the indefinite future (including not-quite-Italy-but-close bans on movement in San Francisco), and as public health officials go into “more lockdown is better” mode, it seems important to underline at least three things: (1) no one knows what they are doing, hence (2) these measures are a rough approximation of acting according to a maximin principle, and (3) they are not socially sustainable.  I'll conclude with what strike me as the only two currently-plausible off-ramps.

Let’s start with (1).  John Ioannides makes the best case I’ve seen for the uncertainty behind what we’re doing in a recent piece on StatNews.  The depth of our collective ignorance is astonishing.   Before we even get to Ioannides’ argument, note that (a) Everyone knows about the catastrophic, Trump-induced failure to get testing and surveillance going early on, and that this failure cannot ever be remedied because we will never again be in those early stages.  Trump’s and FOX News’ collective failures here should be treated as cases of criminal negligence.  But notice that this means that we have absolutely no idea about basic facts about the disease prevalence.  (b) Even if we had good testing, recent data says that lots and lots of COVID-19 is escaping detection.  How many cases?  We don’t know, of course, because these are undetected cases.  They may not be as infectious.  But whatever the number, it profoundly affects everything from the case fatality rate to how long a hypothetical “herd immunity” would take to develop.  (c) As Ioannides points out, a lot of the data we do have isn’t worth much.  For example, the mortality data is meaningless.  I’ll let Ioannides give you a sense of why:

COVID-19 Testing: just how bad the U.S. is

In one easy chart:

The Autumn of the Patriarch

We are here on the balcony because of a pan-demic, a terrible pandemic that we have handled perfectly.  More testing for the virus is coming soon.  But also not everybody needs or should get testing.  Also we are going to cap off the petroleum reserve gas tank at a great price.  Many wonderful amazing people are here to tell you what an honor it is to work with The Leader.  The Leader’s ministers are now partnering with the private sector to produce a drive-through test.  Which will be available soon!  Then things will be more perfect, and more tremendousness is just around the corner.  When will the test be available?  Soon!  What about emergency legislation that the ministers have been working with the opposition party on?  The Opposition doesn’t want enough, doesn’t want what we want.  There are so many problems with the Opposition. 

The Leader would like to shake your hand.  If there were another solar eclipse, The Leader would gaze at it again.

Thoughts on COVID-19

By Gordon hull

The coronavirus outbreak showcases a lot of what is wrong with the Trump administration and the stupid, preening narcissist at its head (this is a president who claimed not to have known that flu kills thousands of people every year – but whose own grandfather was a victim of the 1918 pandemic).  At the Washington Post, Jennifer Rubin thinks that coronavirus is likely to bring down the entire GOP house of cards in November, as it relentlessly exposes the corrupt ineptitude of Trump; as goes Trump, so go his sycophantic enablers in the Senate.  This would be karmic.  It would also be no comfort to the many, many people that Donald Trump is about to kill.  Indeed, not just the actions of Trump’s egomaniacal incompetence but our collective need to think about it (guilty!) is itself part of why we aren’t prepared.

That is, people will die because the failure of the government to do anything meaningful towards containment in the early stages of the epidemic, in no small part because of Trump’s narcissistic dithering and lying.  Even now, as we’ve moved from “containment” to “mitigation,” nowhere near enough people are being tested.  This makes it much harder to know who is at risk of contracting the disease and spreading it to others, which in turn makes it more likely that they do so.  More people will get sick.  Not testing enough people also makes it impossible to know how deadly the disease is, because it denies you a sensible denominator for predicting the case fatality rate.  When Trump said he had a “hunch” that the WHO’s widely-circulated 3.4% fatality rate was too high, he was probably right (with lots of provisos) – but his own stonewalling on testing make it impossible to substantiate the point.  Trump will also kill people through his prior stupid policy decisions, like forcing asylum-seekers to wait in Mexico until their number is someday called, in makeshift camps that lack even the running water necessary for hand-washing.

A Deleuzian Undercurrent to Foucault’s “What is an Author?” (part 2)

Last time, I began the to make the case that there is evidence of an engagement with Deleuze in Foucault’s “What is an Author.”  Specifically, I made the case that there is an implict Platonism behind the concept of authorship as Foucault articulates it.  This time, I will look at the way that Barthes overturns authorship, and how Foucault’s language distances himself from that, while of course beginning with the proposition that the author is, in fact, a fiction.  For Deleuze, the question of difference, when posed against Platonism, is substantially a question of attending to the “swarming” differences that lie outside the Platonic metaphycial schema, and which are accordingly illegible wihtin it, insofar as they cannot be referred back to the anchoring eidos.

This language of swarming differences that are inexpressible and illegible from within a representative schema is also found in Barthes, who is often Foucault’s presumed interlocutor in “Author.”  As Barthes  sees clearly, “writing” and “text” radically exceed this space of authorship, bringing into play indefinitely many differences and ways of thinking difference.  Writing is, to revert to Deleuzian terms, “a world of impersonal individuations and pre-individual singularities” (DR 277).   Barthes’ “Death of the Author” is the most obviously relevant contribution here, and he famously opens “Death of the Author” with praise of “writing:”

A Deleuzian Undercurrent to Foucault’s “What is an Author?” (part 1)

By Gordon Hull

Toward the end of “What is an Author,” Foucault distinguishes between the “founder” and “initiator [instaurateur]” of a discourse.  Galileo is the paradigmatic example of the former, and Marx of the latter.  This is a puzzling distinction, to say the least.  Let’s begin with the terminology: Although “founder [fondateur]” is common enough, as far as I know, Foucault doesn’t use “instaurateur” anywhere else.  At least, a computer search of the text of Les Mots et Les Choses, Archéologie du Savoir and the pre-1975 Dits et Écrits didn’t turn up anything.  Other things being equal, those seem like the most likely places to find it (if I’m missing uses of the term, I’d love to learn about them!).  In particular, Order is a likely bet, because in the French seminar version (the one in D&E – see my initial thoughts here and Stuart Elden’s discussion of the textual history here) of “Author,” Foucault frames the text as partly responding to some leftover business from Order, where he admits that he both refuses to organize texts by authors, but also uses authorial names.  The nominal “instauration” occurs a few times in these texts in a way that something more substantial than a blog post would need to investigate, but as far as I can tell, the term of art in “Author” – “instauration discursive,” naming somebody rather than an event – is specific to that lecture.  So something is going on here!

It seems to me that it helps to understand this distinction by putting Foucault in conversation with Deleuze.  Specifically, it seems to me that the instaurateur is an application of what Deleuze calls difference or repetition outside the order of representation.  I’ll make an initial, obviously sketchy, case for that thought over the next few posts, with the caveat that I am not a Deleuze scholar.

Otto’s Phototagging

By Gordon Hull

Last time, I suggested that a recent paper by Mala Chatterjee and Jeanne Fromer is very helpful in disentangling what is at stake in Facebook’s critique of Illinois’ Biometric Information Privacy Act (BIPA). Recall that BIPA requires consent before collecting biometric identifiers, and a group of folks sued FB over phototagging. Among FB’s defenses is the claim that its software doesn’t depend on human facial features; rather it “learns for itself what distinguishes different faces and then improves itself based on its successes and failures, using unknown criteria that have yielded successful outputs in the past.” (In re Facebook Biometric Info. Privacy Litig., 2018 U.S. Dist. LEXIS 810448, p. 8). Chatterjee and Fromer apply the phenomenal/function distinction from philosophy of mind to the question of how mental state requirements in law apply to AI, with an extended case study of liability for copyright infringement. Basically, there’s an ambiguity buried in the mental state requirements, and we need to decide – probably on a case-by-case basis – whether the law’s objective is better served by a phenomenal or functional account of the mental state in question.

In applying the distinction, I suggested that we assume for the sake of argument that the software does not do the same thing that an embodied human being does when they identify a face. In other words, I was suggested that we accept arguendo that the software in question does not achieve the same phenomenal state as one of us does when we recognize a face. I also said I think that assumption, while clearly correct in a literal sense, may not be able to do as much work as it needs to. Here’s why.

It should be fairly clear that the experience of recognizing Pierre in a café is not identical between different people, or probably even the same person in different times. For that to be true, the molecular structure and electrical activity in their respective brains would have to be identical, which isn’t going to be the case. It’s also not clear that we don’t “learn[] for [ourselves] what distinguishes different faces and then improve[] [ourselves] based on [our] successes and failures, using unknown criteria that have yielded successful outputs in the past,” just like FB. After all, if you ask me why I recognize somebody, I will produce some criteria – but if it’s somebody I know, it’s not like I consciously apply that criteria as a rule. Neither the FB system nor I are using the old-fashioned “AI” of an ELIZA program. It would therefore at least require some argument to say that I recognize the face by means of that criteria, rather than offering it as a post facto explanation. Indeed, recognition does not appear to be a “conscious” process in the relevant sense at all. So that can’t be the issue.

Facebook, Biometric Privacy and the Philosophy of Mind

By Gordon Hull

Facial recognition technology is an upcoming privacy mess.  An early example of why is photo-tagging on Facebook.  The privacy problem was noted a while ago by Woody Hartzog and Frederic Stutzman: “once a photo is tagged with an identifier, such as a name or link to a profile, it becomes searchable …making information visible to search significantly erodes the protection of obscurity, and, consequently, threatens a user’s privacy” (47; on obscurity, recall here and here).  A while ago, I noted litigation surrounding Illinois’ Biometric Information Privacy Act (BIPA).  BIPA basically establishes notice and consent rules for companies that collect and use biometric information.  For example, it stipulates that “no private entity may collect, capture, purchase, receive through trade, or otherwise obtain a person's or a customer's biometric identifier or biometric information, unless it first” informs the person in question of what’s happening and what the entity is doing with the data, and then obtains a written release (740 ILCS 14/15(b)).  As I suggested, this regime is subject to the obvious problems with notice and consent privacy, but companies like Facebook are resisting providing even that de minimis protection for their customers.  In a landmark ruling last year, the Illinois Supreme Court upheld the law’s statutory damages provision.

More generally and as parallel federal litigation underscores, BIPA presents a significant threat to FB.  The issue in question is precisely photo-tagging.  As the 9^th Circuit described the process:

“In 2010, Facebook launched a feature called Tag Suggestions. If Tag Suggestions is enabled, Facebook may use facial-recognition technology to analyze whether the user’s Facebook friends are in photos uploaded by that user. When a photo is uploaded, the technology scans the photo and detects whether it contains images of faces. If so, the technology extracts the various geometric data points that make a face unique, such as the distance between the eyes, nose, and ears, to create a face signature or map. The technology then compares the face signature to faces in Facebook’s database of user face templates (i.e., face signatures that have already been matched to the user’s profiles). If there is a match between the face signature and the face template, Facebook may suggest tagging the person in the photo” (Patel v. Facebook, 6).

A group of representative Illinois FB users sued the company and filed for class certification,  arguing that “Facebook violated sections 15(a) and 15(b) of BIPA by collecting, using, and storing biometric identifiers (a “scan” of “face geometry,” id. 14/10) from their photos without obtaining a written release and without establishing a compliant retention schedule” (Patel v. FB, 7).

The Surveillance Gap and Neoliberal Necropolitics

By Gordon Hull

Consider the following, too brief summary: following Foucault, one can say that biopolitics is about optimizing populations, or something to that effect.  This involves a lot of work on the part of the administrative state, which sets itself up to provide services, everything from sewers and other infrastructure to social safety nets.  Different places do this differently, but the goal is to provide for the general welfare.  At the same time, as Foucault noted from the get-go (see the last lecture in Society must be Defended), the biopolitical “make live or allow to die” generated a correlative “if you want to live, they must die” (SMD 255).  Those Others were excluded from the “population” that the state tried to optimize and so were either allowed to die, or (in cases such as the Nazis) actively killed, or (in the case of American Jim Crow) actively suppressed and marginalized and often killed.  These various forms of necropolitics are intimately related as both a matter of historical fact (the Nazis thought Jim Crow an excellent example of race management) and conceptual structure under the rubric of something like state racism.  So too, the biopolitics of optimization is historically tied to the necropolitics of state racism, as scholars like Dell McWhorter make clear in the American case, or Agamben does in the case of the German Versuchpersonen.

But biopolitics has more than one variant, or at least so I’ve tried to argue.  I think it’s useful to view biopolitics in an earlier phase – what I call “public biopolitics” and a more recent neoliberal version.  The two can be distinguished in part by how they conceptualize the members of the population they are trying to benefit, and how they think they might do so.  For example, intellectual property on the public model is about public welfare and the benefits to everyone of encouraging inventive activity.  On the neoliberal version, the emphasis is much more on individual creators and markets. But the neoliberal version very much embeds a view of public welfare – a society of individual entrepreneurs and consumers, whose well-being is measured by various indicia of consumer welfare.

But what about the necropolitics of neoliberal biopolitics?  One obvious avenue to pursue is that those who are excluded from markets are allowed to die.  The rhetoric of consumer choice is often then utilized to suggest that they deserve their fate because of a failure to opt-in.  Whatever the merits of that avenue, it seems clear enough that more can be said.  One component of the U.S. piece is going to be data and surveillance.  Biopolitics itself arose in the context of data governance mechanisms like the census, and the importance of data to contemporary capitalism is large and growing.  One way the surveillance state implements necropolitics is by what Margaret Hu calls “big data blacklisting:” classifying certain kinds of people as ineligible for many of the things to which other members of the population are entitled (such as employment or the ability to board a commercial aircraft), or rendering them subject to ceremony-free death by drone strike.

In a fascinating recent paper, Michelle Gilman and Rebecca Green offer some important clues to another aspect of the story.  Most of the literature about data privacy focuses on what happens when people don’t have enough privacy.  Gilman and Green focus on the inverse problem: what happens when people have too much privacy, i.e., when they become invisible in a society predicated on visibility?  Working primarily with examples of the undocumented, the homeless, day laborers and those with felony convictions, Gilman and Green tell the story of “populations that remain outside seemingly omnipresent surveillance systems” (257), those who live in the “surveillance gap.”  If too much surveillance is bad, so is too little:

Review Essay of Privacy Books

In the shameless self-promotion dept., I have a new paper out - actually a review essay in Ethics & International Affairs (SSRN link here) of two recent books on privacy, Ari Ezra Waldman's Privacy as Trust and Jennifer Rothman's Right of Publicity.  Both books are well-worth the read!  The essay also pushes my thesis about the difficulties of assessing privacy on purely economic grounds.  Here's the abstract:

Most current work on privacy understands it according to an economic model: individuals trade personal information for access to desired services and websites. This sounds good in theory. In practice, it has meant that online access to almost anything requires handing over vast amounts of personal information to the service provider with little control over what happens to it next. The two books considered in this essay both work against that economic model. In Privacy as Trust, Ari Ezra Waldman argues for a new model of privacy that starts not with putatively autonomous individuals but with an awareness that managing information flows is part of how people create and navigate social boundaries with one another. Jennifer Rothman’s Right of Publicity confronts the explosive growth of publicity rights — the rights of individuals to control and profit from commercial use of their name and public image — and, in so doing, she exposes the poverty of treating information disclosure merely as a matter of economic calculation. Both books emphasize practical and doctrinal solutions to the problems they identify. In this essay, I take a step back and draw out the extent to which they converge on a fundamentally important point: the blunt application of market logic with its tools of property and contracts fails to protect the interests that lead us to turn to privacy in the first place; the tendency to economize privacy is a significant part of why we inadequately protect it.

The Normative Valences of Obscurity (part 2)

By Gordon Hull

Last time, I offered some thoughts on Woody Hartzog’s (and co-authors’) development of “obscurity” as a partial replacement for privacy.  On Hartzog’s account, privacy is subject to a number of problems, not least of which is that we tend to think in terms of an unsustainable binary: things are either “private” or “public,” which means that any information you disclose even once is permanently out there.  This doesn’t track how people live their lives: we share information all the time, for all kinds of reasons; however, we reasonably expect it to remain within certain social contexts, and we expect that it will take effort for someone to wrest it our of those contexts.  The latter of these is more or less what “obscurity” indicates.  There is a lot of information out there, but many of those who nominally have access to it don’t actually know enough to do anything with it.  Hartzog analogizes the situation to talking in a restaurant.  People at adjacent tables can likely hear the words you say, but they lack the context for them to be meaningful.  In that sense, communication, even in public, often remains obscure.  This is true both online and off; one of the reasons we need to worry about privacy now is that various technologies make it a lot easier to fill in that context, especially online.  So we don’t become less or more private online, but we do become less obscure.

I concluded by promising a point about latent ambiguity in this context.  Recall that in Lessig’s Code, he suggests that a number of important legal concepts – “privacy” and “fair use” – embed an ambiguity in their meaning.  That is, we don’t know quite what they mean because the people who wrote them into law had never thought through situations analogous to a current one.  For fair use in copyright, for example, it used to be difficult to stop people from making personal copies of works or to meter how many times they used them. So those uses became “fair” and defensible.  If you were accused of violating copyright, you could offer fair use as a defense, and norms arose against pursuing those violations.  Now that technological developments make it easy to stop copying and meter use, we have to confront the question of whether we want fair use for normative reasons, or if we simply had it because of those disappearing inefficiencies. Should fair use protect only use that is inefficient to meter?  There is a clear analogy to obscurity: do we have obscurity because it was difficult to know enough metadata to figure out what the neighbors were gossiping about over the fence, or because we think it’s a bad idea to pry?

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.