New APPS: Art, Politics, Philosophy, Science

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).