New APPS: Art, Politics, Philosophy, Science

Biopower, Juridical Power, and Patent Trolls

Patent law seems like an easy place to talk about biopower.  After all, it has been possible to patent life forms for some time now, and large numbers of patents are issued for products that directly affect life, as in the case of pharmaceuticals and other medical innovations.  Biopolitical implications of patent law are thus easy enough to adumbrate, even if one wants to construe “life” in narrow, biological terms.   There is, however, another angle that needs to be considered, which is the institutional structure of patent law.  If one effect of the emergence of biopolitics is the rise of the regulatory state and the decline of judicial power, we see in the case of patent law an ongoing struggle between institutions representative of those forms of power.  Two Supreme Court decisions in the past week illustrate this conflict; this post will deal with the first (TC Heartland) and I will have something to say about the second in a follow-up post.

Kant on Big Data?

A recent paper by Ermanno Bencivenga in Philosophical Forum argues that it’s “time for philosophy to step into the conversation” (135) about big data, in particular to refute the thesis, which the article identifies in a 2008 piece in Wired, that big data will mean that we no longer need theory: “with enough data, the numbers speak for themselves” (qt. on 135).  The paper draws on concerns about spurious correlations: to demonstrate that a correlation is legitimate, it “must be shown to manifest a lawlike regularity; there must be a theoretical account of it,” that laws have to cohere with one another, and so on (139).  In other words, “knowledge is constitutionally dependent on theory” (ibid.).   Bencivenga concludes:

“Big Data enthusiasts are (unwittingly advocating a new definition of what it is to know.  Their agenda is (unwittingly) semantical.  Except that it is not worked out, and any attempt at developing it in the semantical terms that have been current (and antagonistic) for the past two millennia is hopeless.  I will not rule out that a new set of terms might be forthcoming, but the burden is / on those enthusiasts to provide it; simply piling up data and being awed by them will not do.  What would be needed, ironically, is a new theory of knowledge, which so far I have not seen.  This is the reason why I have made an effort to get clearer about the claims being made, so that we can have a more orderly discussion of them and what it would take to make progress in it” (141-2).

Fair enough, though I do want to note that the paper does not engage with any literature about big data other than the dated piece from Wired; and to hear enthusiastic techno-babble from Wired is not surprising.  That’s what they do.

It’s also worth pointing out that these sorts of concerns have been expressed before.  Here are danah boyd and Kate Crawford from a widely-cited paper in 2012.  After noting that “Big data reframes key questions about the constitution of knowledge, the processes of research, how we should engage with information, and the nature and categorization of reality” (665), they caution that:

“Interpretation is at the center of data analysis. Regardless of the size of a data, it is subject to limitation and bias. Without those biases and limitations being understood and outlined, misinterpretation is the result. Data analysis is most effective when researchers take account of the complex methodological processes that underlie the analysis of that data” (668)

These are cherry-picked quotes – arguably, the entire paper is a response to the sort of enthusiasm in the Wired piece, and the focus on our hidden rules for interpretation is clearly directed at the view that somehow data self-interprets.  And there are certainly more papers that bring up this and analogous topics; Luciano Floridi raises similar ones here (Floridi’s worries resonate well with Amoore’s, discussed below).  That said, I think there’s something to be said for speaking of big data in Kantian terms, though not perhaps for the reasons Bencivenga advances.

Republican Thanatopolitics

Foucault reminds us that biopolitics is describes a kind of power structure according to which some will be compelled to live (or have their lives as members of a favored population optimized), while others will be allowed to die.  As he puts it, “the ancient right to take life or let live was replaced by a power to foster life or disallow it to the point of death” (HS1, 138).  Although much work has focused on techniques by which biopower works to optimize a population, it is worth attending to the disallowance of life, the thanatopolitics that is the other half of biopower, because the Republican party is engaged in producing a very effective case study.

As Foucault says a few pages later, “a power whose task is to take charge of life needs continuous regulatory and corrective mechanisms.  It is no longer a matter of bringing death into play in the field of sovereignty, but of distributing the living in the domain of value and utility” (HS1, 144).  Those who are deemed to be without sufficient value or utility are allowed to die.  Much attention here has focused on Foucault’s brief remarks on “race” war in Society must be Defended, where he proposes that biopower creates a “race” of those who must die, so that “we” can live.  He is thinking of Nazi Germany and the logic of cold war deterrence, but  current Republican policies show that thanatopolitics can operate at a much more granular and subtle level.

I am of course talking about the AHCA, the mean-spirited tax cut for the wealthy, sponsored by gutting the (limited) ability of the Affordable Care Act (ACA) to provide for the needy.  Various theorists after Foucault – François Ewald in particular – have emphasized the role of insurance in biopolitics as it comes to regulate and define acceptable behaviors according to actuarial risk.  Here we see its role in thanatopolitics.  There’s a good analysis of the AHCA’s evolution and structure here; suffice it to say that the law, if enacted, would end up in at least 24 million people losing access to insurance (largely by gutting Medicaid and ending the mandate that people have insurance. Republicans are flatly lying about this).  It also allows states to scale back guarantees for coverage of those with pre-existing conditions, and allow states to scale back what services have to be included in health insurance; the primary target appears to be maternity and contraceptive coverage.  Apparently the old, white men who are behind this forgot that they had mothers who required medical care.  There’s a fig leaf $8 billion to fund high-risk pools, which no one qualified thinks comes near to the cost of funding those pools.  It’s not a full regress to pre-ACA levels, but it’s about as far as things can go without requiring enough votes in the Senate to overcome a filibuster.