New APPS: Art, Politics, Philosophy, Science

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. 

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:

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 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.

The Biopolitics of Intellectual Property

I'm very pleased to announce that my new book, The Biopolitics of Intellectual Property, is now out in print/electronically on Cambridge UP.    Here's a blurb:

"Intellectual property is power, but what kind of power is it, and what does it do?  Building on the work of Michel Foucault, this study examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization.  It argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions.  The struggle to conceptualize IP matters, because different regimes of power imagine different kinds of subjects, from the rights-bearing citizen to the economic agent of neoliberalism.  As a central part of the regulation of contemporary economies, IP is central to all aspects of our lives.  It matters for the works we create, the brands we identify and the medicines we consume. The kind of subjects it imagines are the kinds of subjects we become"

 

The CUP page for the book has not just the text as a whole but the chapters (the main ones are a theoretical discussion, and one each on copyright, trademark and patent), and each of the chapters has an abstract.  For now, here's a little text from the introductory chapter that should give a better idea of what I'm up to.  As you'll see, I want to say something about IP, of course, but also about how I think biopolitics works (in both what I call its earlier, "public," form, and current neoliberalism) and about the fundamental but neglected importance of including law and legal institutions in our genealogical work:

"The core of my argument is that the kind of power expressed in IP is subtly changing. Initial evidence for this claim is that new doctrinal developments have been difficult to incorporate into traditional models of IP. For example, retroactive  copyright extension is hard to square with a theory that says copyright is about incentives to create new works. Presumably, Walt Disney will be unmotivated by any changes in IP today. Trademark dilution, which allows action against expression that damages a brand’s image in consumers’ minds, is difficult to square with the standard theory that says that trademark is about avoiding consumer confusion. And the patentability of living organisms and (until recently) isolated genetic fragments is difficult to reconcile with the traditional view that products of nature should not receive patent protections. In cases such as these, I will argue, it is necessary to recognize that IP is performing a different and new social function, one that requires a rethinking of the kind of power expressed by IP laws and regulations.

"I take my theoretical starting point from the work of Michel Foucault, for whom modern power has operated in two basic forms. The first, associated with the social contract tradition, conceptualizes a rights-bearing, juridicial subject, for whom law operates as a system of constraint and coercion. That which law does not prohibit is allowed, and the most important questions revolve around the limits to law’s ability to prohibit. The second, associated with the modern, administrative state, Foucault calls “biopower” or “biopolitics,” and it is concerned with productively managing and even optimizing populations through such measures as public health and education programs. Biopower is thus fundamentally generative. Closely aligned with the rise of capitalism, biopower has emerged as central to the operation of the modern state, which tends to emphasize regulatory agencies and administrative law, even if it also retains a framework of judicial rights.

On the Authorship of Law II: The Social Life of Building Codes

By Gordon Hull

As I noted last time, the Supreme Court has decided to take up a case about copyright in state codes.  Specifically, Georgia contracts with Lexis to produce an annotated version of its code, which is the state then blesses with the title “Official Georgia Code Annotated” and claims copyright in.  The question is whether the annotations are part of the code; if they are, they are public domain because the law is public domain.  The 11^th Circuit said that they are, because the legislature officially adopts them, courts refer to them, etc.  If it walks like a duck…

One of the decisions cited in the 11^th Circuit opinion cites along the way establishes that model building codes, once incorporated into statute, lose whatever copyright protection they had.  In Veeck v. Southern Building Code Congress International (293 F.3d 791 (5th Cir. 2002)), SBCCI was “a non-profit organization consisting of approximately 14,500 members from government bodies, the construction industry, business and trade associations, students, and colleges and universities.”  SBCCI’s purpose was to develop model building codes for municipal governments to adopt, which the small north Texas towns of Anna and Savoy did.  Veeck ran a web site about northern Texas, and wanted to put the building codes online.  When he had some difficulty getting them from Anna and Savoy, he paid SBCCI $72 for the codes, and then posted that online, correctly labeling them as the building codes of Anna and Savoy.  The question, then, was whether in being enacted as part of the municipal law of Anna and Savoy, the codes lost the copyright protection they enjoyed as products of SBCCI.  The 5^th Circuit, relying on the premises that “law” is not copyrightable, the copyright idea/expression dichotomy, and extant caselaw, ruled that the codes were no longer copyrightable.

If the Georgia case attempted to think through what the conceptual underpinnings of the thesis that law is not copyrightable, SBCCI offers a chance to think about what that means in practice, and how it interacts with the more commercial IP system.  Indeed, one of SBCCI’s arguments in favor of protection was quite precisely the commercial incentives justification for copyright.  I want to approach all this somewhat elliptically.  Quite some time ago, I used Deleuze’s critique of Platonism (in Difference and Repetition and Logic of Sense) to suggest that the original/copy distinction in copyright functions like the eidos/copy distinction in Platonism.  For Deleuze this distinction isn’t about metaphysics so much as police work: it’s about knowing how to distinguish legitimate copies from illegitimate simulacra.  Deleuze writes:

On the Authorship of Law: Copyright, Foucault, and Hobbes

There is an interesting copyright case before the Supreme Court this term, Georgia v. Public Resource.org. It is settled law that official edicts of the government – statutory texts, judicial opinions, agency rules – are not copyrightable. More about that in a moment. In this case, Georgia entered into a contract with Lexis to produce an annotated version of its code. The state gets editorial control, and Lexis gets exclusive publication rights. The product is the “Official Georgia Code Annotated” and is generally cited as the authoritative statement of Georgia law. Public Resource made copies of the OGCA publicly available for free, including the annotations. The state claims copyright over the annotations and sued to enjoin Public Resource.  The question before the court is thus whether the annotations to state law are copyrightable, even given that the statutory text is not.

The case follows an appeal from a substantial Eleventh Circuit opinion, finding that the OGCA was not copyrightable because, even if it wasn’t quite the same thing as the statutory text, it nonetheless is “an exercise of sovereign power” (3) and “sufficiently law-like so as to be properly regarded as a sovereign work” (4). There’s a lot to say, and much depends on the peculiar arrangement Georgia has with Lexis.  For example, the OGCA both costs money and is taken to be authoritative over the unannotated version of the text made available for free; it is both the results of a heavily regulated legislative process and is routinely cited by Courts as authoritative in interpreting the law. What I want to focus on here, however, is the 11^th Circuit’s discussion of authorship.

Abusive Uses of Big Data, College Admissions edition

Per an investigative report in the Washington Post, growing numbers of colleges are using cookies and other website tracking devices to profile potential students and selectively recruit, including sometimes by income level (there’s a long discussion of how Mississippi State appears to be doing this).  And of course they do so by spending lots of scarce money on for-profit consulting companies which then do the data analytics work to try to guess who is likely to apply, attend, etc.  Some of the worst offenders appear to be schools facing declining enrollments and/or state funds, which therefore have to recruit paying students particularly aggressively.

Along the way, they’re using all the tricks in the big data company playbook.  For example, Capture Higher Ed does the following for its clients:

“Each visitor to the university site gets a cookie, which sends Capture information including that person’s Internet protocol address, the type of computer and browser they are using, what time of day they visited the site and which pages within the site they clicked on …. Every time that person returns to the site, Capture learns more information about them, such as their interest in athletics or the amount of time they spend on financial aid pages, according to promotional videos on the company’s website.  Initially, the cookies identify each visitor by the IP address, a unique code associated with a computer’s Internet connection, but Capture also offers software tools to match the cookie data with people’s real identities, according to the company’s promotional videos. Colleges do this by sending marketing emails to thousands of prospective students, inviting them to click on a hyperlink inside the message for more information about a particular topic, according to the videos.  When a student clicks on the link, Capture learns which email address is associated with which IP address, connecting the student’s real identity to the college’s snapshot of the student’s Web browsing history, Capture executives said in one of the videos”

And many of them seem to have the same arrogant entitlement about their data collection that the big data companies do: when asked about students who might not want to be tracked, the CIO at SUNY Buffalo State College replied that “You have a choice of not interacting at all.”

I wonder how many scholarships they could fund with the money that they funnel into those private consultants?

Hobbes, Biopolitics, Security, part 2: Spinoza

By Gordon Hull

Last time, following a new paper by Andrea Rossi, I suggested that Hobbes’s reformulation of the Stoic “security” in terms that we would recognize as biopolitical – oriented toward human flourishing, and not just survival – enables him to reformulate the Ciceronian salus populi suprema lex (“the welfare of the people is the supreme law”).  As I suggested, this renders Hobbes a different thinker from what Foucault thought he was.  Here, I want to suggest that it also shows that one of the usual divisions between Hobbes and Spinoza (roughly: Hobbes is a juridical absolutist and a theorist of potestas; Spinoza is a democrat and theorist of potentia) just doesn’t hold much water.  In other words, the sharp division drawn by Negri regarding the “permanence and opposition of two lines” in modernity, “the absolutist one, following Hobbes, and the democratic one, espousing Spinoza” (Porcelain Workshop, 52) – gets in the way of a more productive engagement between the two.  It’s not that Hobbes and Spinoza come to the same political conclusions (they clearly do not) – the interest is in how similar they are  prior to those conclusions.

Hobbes, Biopolitics, Security

By Gordon Hull

Foucault aligns Hobbes with juridical power, not biopower.  Juridical power is repressive and takes life away; it is epitomized by monarchy.  Biopower, in contrast, is power that “exerts a positive influence on life, that endeavors to administer, optimize, and multiply it, subjecting it to precise controls and comprehensive regulations” (HS 1, 137).  Foucault then famously says that “the representation of power has remained under the spell of monarchy. In political thought and analysis, we still / have not cut off the head of the king” (HS1, 88-89).  In Society must be Defended, he argues that:

“Rather than asking ourselves what the sovereign looks like from on high, we should be trying to discover how multiple bodies, forces, energies, matters, desires, thoughts, and so on are gradually, progressively, actually and materially constituted as subjects, or as the subject.  To grasp the material agency of subjugation insofar as it constitutes subjects would, if you like, be to do precisely the opposite of what Hobbes was trying to do in Leviathan” (SMD 28).

Well, no. I think this is a misreading of Hobbes, and in my Hobbes book, I argued that it’s productive to see Hobbes as a sort of proto-theorist of biopolitics in the Foucauldian sense. How so?  My argument was basically that Hobbes actually rejects a juridical model of power that’s focused on the king, and instead focuses on how the commonwealth can bolster the population.  More precisely, Hobbes starts by rejecting the Aristotelian zoon politikon.  In De Cive, Hobbes claims that “man is made fit for society not by nature, but by training” (DC I.2, note).  This is a direct repudiation of the Aristotelian dictum that “the political art does not make men but takes them from nature and uses them” (Politics 1258a22).  On my reading, Hobbes shifts focus to how to make people fit for society, a project that involves their subjectification as rational subjects.  This requires, above all, careful regulation of the system of signification at work in the commonwealth, because stability there is key to getting inside people’s heads.  After all, Hobbesian people actually lack an intellectual faculty – intellect specifically reduces to imagination. The pithiest pronouncement of this thesis is in De Homine, where Hobbes announces that “intellect is in fact imagination, but which arises from the settled signification of words [est enim intellectus imaginatio quidem, sed quae oritur ex verborum significatione constituta]” (DH 10.1; OL II, 89).  This means that if you can control external stimuli, you have a pretty good shot at getting bad thoughts out of people’s heads.

NC GOP Forgets 9/11

That's right, the party of flag and God and country found something more important to do today than remembering 9/11: making sure that poor North Carolinians don't get health insurance.  The current state budget does not include Medicaid expansion because the GOP so hates Obama that insuring 600,000+ people and creating 30,000+ jobs in the process, almost entirely on the dime of the Feds, just seems like a bad idea.  But the Republicans lost their veto-proof majorities in 2018, so this time when Democratic Governor Roy Cooper vetoed it, they couldn't just steamroll him.  There's been a two-month stalemate since, largely featuring GOP scheduling override votes, dangling various bits of pork spending in front of democrats, not getting enough defectors, and then abruptly canceling the vote.

Then today in the NC House, the GOP assured everyone that there would be no votes because of 9/11.  When they realized that a number of democrats were out commemorating 9/11 or otherwise absent, they - SURPRISE! - voted to override Cooper's veto.

This legislature is beyond shameless, but it's not even the voting that is perhaps the most shameless thing they did today.  No, that award goes to the sanctimonious bit of hypocritcal drivel from one Rep. Jason Saine, who is "appalled that anyone in our country would stop going about their normal business on this day. When we stop being a beacon of freedom, hope and democracy, then the terrorists win."  Yep, 'cuz nothing shines that light of freedom, hope and democracy brighter than a minority party that holds power only because of unconstitutionally gerrymandered districts depriving poor people of the ability to see the doctor!

Imagine if Nancy Pelosi conducted a vote for something important on 9/11, after telling the GOP that she wouldn't.

The budget is now in the hands of the Senate, where the GOP only needs one democratic defector to continue on its gerrymandered way.

Algorithmic Housing Discrimination

It appears that HUD, as part of the general initiative to stop enforcing the housing laws it’s supposed to enforce, is poised to allow landlords to hide behind computer algorithms as they discriminate against minority tenants. As Andrew Selbst – who co-authored one of the foundational pieces on exactly this sort of problem – describes the proposed rule change in Slate:

“The proposal, while billed as a mere update to bring regulations in line with the Supreme Court’s 2015 decision, creates entirely new rules for landlords using algorithms. There are functionally two separate defenses being created. First, the proposal allows landlords to use an algorithm as long as its inputs are not “substitutes or close proxies” for protected characteristics and as long as it’s predictive of what it purports to predict—or a “neutral third party” certifies that fact. So if a hypothetical landlord decides to predict number of noise complaints as a proxy for difficult tenants, using music streaming data they somehow obtained, they might find a correlation between preferred musical genre and how difficult a tenant is. Of course, musical preference is not a substitute or close proxy for race, but an algorithm that equates a preference for hip-hop with noise complaints is probably picking up on race as a factor in frequency of noise complaints. Unlike under existing law, under this rule, a landlord would be off the hook even where there may be less discriminatory alternatives. Second, the landlord is also immunized from any discrimination claim if he uses a tool developed and maintained by a recognized third party. These safe harbors supposedly ensure that a model is legitimate and the landlord has not himself “caused” the discriminatory outcome”

A brief discrimination backgrounder: legally, discrimination can be on the basis of disparate intent, or disparate impact.  Disparate intent is what it sounds like: I discriminate against black tenants if I decide not to rent to any, because they are black.  As you can imagine, this sort of discrimination is hard to prove, because not so many people are dumb enough to advertise it.  The more standard strategy is to mask discrimination behind proxies that name race (or some other protected category) without actually naming it.  Given residential segregation, for example, zip code is a pretty decent proxy for race, and so a landlord might systematically disfavor applicants whose previous address is in a specific zip code.  That’s also not ok, because although the rule doesn’t (directly) “intend” to discriminate, the impact of this policy is disparate between racial groups, and so is the same as if it did.

Lessons from Agre on Privacy as Capture (Part 2): Can Foucault Get Past Panopticism?

By Gordon Hull

A couple of weeks ago, I noted my newly discovered appreciation for Philip Agre’s “Surveillance and Capture” and outlined why I think his development of capture (and retreat from surveillance) is particularly applicable to the privacy concerns surrounding big data.  Here, I’d like to suggest that Agre’s distinction is also helpful in understanding a frequently remarked limitation in Foucault.  The limitation is this: a Foucauldian model of disciplinary power treats Bentham’s panopticon as its ideal image.  That image, and the model it subtends, has come under sustained critique over the last twenty years in a scholarship inspired by Deleuze.  Let me start with a review before getting to what capture can tell us about Foucault and surveillance.

One Small Step for Trans Rights. And a Moment for Dan Bishop Awareness.

North Carolina took a small step today towards undoing its disgraceful HB2 legislation passed by the state’s Republican legislature back in 2016 as an effort to stop Charlotte’s attempt to allow trans people to use the bathroom matching their gender identity.  Per a consent decree today, the state has agreed that no provision in HB2’s successor, HB142, can be read to prohibit trans people from using the bathroom matching their gender identity.

Two cheers for small victories!  It would of course mean a lot more if HB142 weren’t such a crappy law.  Although it was advertised by the legislature as a repeal to HB2, thank you, all done  discriminating, it did nothing of the sort.  The replacement – and these things are still part of state law - locks into place an explicit refusal to offer employment and other civil rights protections to LGBTQ individuals in state law, and it forbids other governmental entities in the state (cities, schools, universities) from going further on other employment laws. So this is very much a partial victory.

In the meantime, one of the original architects of HB2, the egregious state senator Dan Bishop, is running for the state’s currently vacant House of Representatives seat.  Why is this seat vacant?  Well, the state elections board refused to certify the results of last election because of serious issues with ballot tampering emanating from Republican Mark Harris’ campaign (see here, and here to get started).  So we get a do-over.  Harris decided not to run for health reasons and now we have Bishop, who won the Republican primary between himself and a guy who honestly liked to dress up as Boss Hogg.  And who is Dan Bishop?

Philip Agre on Privacy and Big Data (part 1)

By Gordon Hull

A current paper by Mireille Hildebrandt sent me to a paper from 1994 that I’m embarrassed to say I hadn’t read before: Philip Agre’s “Surveillance and Capture.”  Agre’s paper has been cited over 300 times, but it’s missing in a lot of the privacy literature I know.  After reading it, I’ve decided that’s a mistake, and it’s time to make amends.  I’ll begin by saying why I think Hildebrandt is exactly right to bring the paper up in a context of big data.

Agre starts with quotidian examples of tracking, things like employee ID cards that let systems know where they are, to UPS package tracking.  The core argument of Agre’s paper is that there’s two conceptual models of privacy that need to be distinguished in making sense of phenomena like these: one, the one that we all talk about all the time, is surveillance.  The surveillance model grew out of experience with state bureaucracies, particularly in the Soviet bloc, and features visual metaphors (typically Orwell and Bentham); assumes that the watching is nondisruptive and secret; involves territorial metaphors like invasion of space, which tend to then lead to a dichotomy between coercion and consent; involves centralized orchestration; and is identified with the state.  This model, though ubiquitous, isn’t the only or even the best one.  Agre spends most of his time developing the alternative model, though he notes that “when applied as the sole framework of computing and privacy, the surveillance model can lead to oversimplified analysis” and suggests that it lends itself to caricature and easy dismissals such that “genuinely worrisome developments can be seen as ‘not so bad’ simply for lacking the overt horrors of Orwell’s dystopia” (116).   It’s not hard to say that Agre got this one right: whether it’s the well-trodden problems with notice-and-consent or the stubborn persistence of the “I’ve got nothing to hide” deflection, the surveillance model isn’t adequate to privacy worries now.

The second model, which Agre ties to computer science and information systems management, is built around the idea of “capture.”  The capture model also has five characteristics, which Agre develops as a contrast with surveillance.  Capture: uses linguistic metaphors for human activities; assumes that linguistic parsing of activities is active intervention; defaults to structural metaphors; is decentralized; and is driven by to reconstruct human activity “through [its] assimilation to a transcendent (‘virtual’) order of mathematical formalism” (107).  The core concept here is grammar: the basic mechanism of capture is to pick a set of atomic elements (people, UPS packages) and to then develop a grammar that describes their possible movements or changes.  This model is then imposed – sometimes coercively – on the activities it purports to describe, mechanisms are used to then track and measure the activity according to the grammar; the system can then be further calibrated.

Our Corrupt Carneades, or the Citizenship Question

The Trump administration’s effort to add a citizenship question to the 2020 census is a farce attempting to be a tragedy.  The initial claim – that the question was needed to enforce the Voting rights Act – was so obviously pretextual that Justice Roberts had to join the Court’s liberals to strike it down (even though, as Adam Serwer points out, four justices don’t seem to care that they were being lied to).  Printing of the forms commenced, and everybody thought the case was dead, until Trump tweeted new policy and forced the Justice Department attorneys to humiliate themselves in court.  The DOJ then attempted to replace all the attorneys on the case without specifying why – though most informed commentators assumed that this was because the original attorneys felt ethically uncomfortable with whatever they were about to be asked to do, such as reverse themselves on positions that they had insisted upon before.  A federal judge rejected that request today.  There is supposedly a new rationale coming for the question, maybe by way of an unconstitutional executive order, because William Barr says so.  Any minute now.  The difference is that this new rationale will be delivered for self-evidently pretextual reasons, rather than just evidently pretextual ones (Joseph Fishkin outlines what he thinks is wrong with the best argument the DOJ can likely produce here).

Another development that has gotten less attention is perhaps particularly intriguing.  The government has insisted over and over and over that the census had to be at the printer’s by June 30.  The ACLU has now asked the court system to enforce those words, effectively closing the case.  As Marty Lederman usefully summarizes:

Lockean Data Rhetoric

One of the standard talking points about data gets summed up in the “data imperative:” that the drive to accumulate data seems insatiable, and that firms will pursue accumulating it well beyond and definable economic end.  There’s a lot of literature on why this might be; I’ve tended to approach the question with the resources of Marx in hand: data is amenable to commodification, and tends to function as a form of primitive accumulation.  One might also argue that data functions as a form of capital.  Undoubtedly there is a case of overdetermination here, and trying to disentangle the reasons why the universe of data (broadly conceived) so readily interacts with capital is worth further reflection.

In that regard, I’ve been reading David Beer’s excellent new Data Gaze, which looks to develop an understanding of “how data are seen,” with attention to “the implicit limits and parameters that are being set into data before or whilst they are utilized” (6).  In other words, we need to think about what data is, which is to say (following the same sort of path as the Leonelli paper I discussed, but from a different angle), we need to know what data does.  And what data is/does is heavily influenced by how it’s presented in the marketing and other apparatuses of the data industry.  “Data analytics are almost always part of the operation of capitalism and should be seen through the lens of political economy” (14).  Following Foucault’s lead about the “clinical gaze” and how it developed institutionally, Beer proposes of the “data gaze” that:

The Biopolitics of Intellectual Property

I'm very pleased to be able to say that my new book, The Biopolitics of Intellectual Property, now has a publisher's webpage on Cambridge UP!

It's currently in production, and should be coming out this winter.  Here's the blurb from the site:

"As a central part of the regulation of contemporary economies, intellectual property (IP) is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters."

Privacy, Obscurity and Keeping Economics Where it Belongs

By Gordon Hull

In the New York Times last week, Woodrow Hartzog and Evan Selinger underscore the importance of obscurity to privacy.  They begin with an easy example: most of us do not remember the faces or names of those who stood in line with us the last time we purchased medicine at the drug store.  Presumably, they don’t remember our faces either.  Yet purchasing the drugs was done in full visibility (and invariably recorded on surveillance devices).  Hartzog and Selinger note:

“Obscurity bridges this privacy gap with the idea that the parts of our lives that are hard or unlikely to be found or understood are relatively safe. It is a combination of the privacy you have in public and the privacy you have in groups. Obscurity is a barrier that can shield you from government, corporate and social snoops. And until lawmakers, corporate leaders and citizens embrace obscurity and move to protect it, your freedom and opportunities to flourish will be in jeopardy.”

They then adduce several advantages to obscurity: it gives us breathing room to live without fear of intrusion by advertising and the like; it makes intimate relations possible by allowing us to choose with whom to share information; it gives us the space to grow as individuals without surveillance; it protects us from pressures to be conventional; and it fosters civic participation by removing the fear of being on government watch lists.

The attentive reader will notice – and I assume this Hartzog and Selinger’s point – that obscurity is shown to do a lot of the work that privacy is often said to do.  For example, Julie Cohen argued in an early copyright paper that the “right to read anonymously” is important to civil society and democratic participation because it enables the space to explore different opinions and views without fear of governmental repression.  More generally, she has argued more recently that privacy is necessary as an aspect of subjectivity; as she puts it “privacy is shorthand for breathing room to engage in the processes of boundary management that enable and constitute self-development” (1907).  Accordingly:

“But here we must come back to privacy, for the development of critical subjectivity is a realistic goal only to the extent that privacy comes into play. Subjectivity is a function of the interplay between emergent selfhood and social shaping; privacy, which inheres in the interstices of social shaping, is what permits that interplay to occur. Privacy is not a fixed condition that can be distilled to an essential core …. It enables situated subjects to navigate within preexisting cultural and social matrices, creating spaces for the play and the work of self-making.” (1911)

If this is what privacy is for, then why might obscurity help attain that?  A central problem is that privacy is poorly understood by policymakers, being generally defined in terms of whether someone has chosen to reveal information publicly.  This construction of privacy as an individual right is unfortunate at best.  Companies want our data, and so privacy doctrine construes data as something of value that we then trade for someething else we want – say access to a web service.  The model is congruent with market norms that push toward ever more disclosure and tends to lead to a market failure to meet consumer preferences. Consumers are completely unable to effectuate their preferences, and the model subtly teaches us that this is the right way to view privacy.

What I want to emphasize here is a point behind this: the construal of privacy as a market transaction pushes toward contracts as a method of enforcement because, as we have known since Hobbes, enforceable contracts are how you overcome the irrationality of trusting those with whom you may not have future interactions.*  Contracts successfully protect rights when the terms are fully disclosed and freely agreed to, and when there is recourse to the state for enforcement when private parties violate those terms.  Viewing privacy through the lens of contract inevitably pushes toward openness: as Judge Posner concluded in an influential economically-based reading, a claim to privacy is likely an effort to withhold information that would make a transaction more efficient.

Why is Data so Easily Commodified (with a detour into fish)?

By Gordon Hull

Surely one of the more striking features of the rise of data science is how readily it can be incorporated into processes of capitalist valuation, to the point that data may not just be a commodity - it may also be capital.  At one level, this sounds intuitive enough: one might suggest that data presents information about the world, and that knowledge is valuable.  But this view encounters an immediate limitation in that firms seem to want to accumulate data far beyond their ability to value it.  According to this “data imperative,” data is something to be accumulated, even if one has no clear use for it.  An additional problem is that the companies that accumulate all of this data are generally not so interested in whether it represents the world accurately.  They want it because they want to influence behaviors.

So what is going on, and is there something about data itself that makes it particularly suitable for capitalist accumulation?  To answer that question, one needs to have a handle on what data is.  Here, a recent paper by Sabina Leonelli is particularly helpful.  Lenoelli defines data as follows:

“I define ‘data’ as a relational category applied to research outputs that are taken, at specific moments of inquiry, to provide evidence for knowledge claims of interest to the researchers involved. Data thus consist of a specific way of expressing and presenting information, which is produced and/or incorporated in research practices so as to be available as a source of evidence, and whose scientific significance depends on the situation in which it is used. In this view, data do not have truth-value in and of themselves, nor can they be seen as straightforward representations of given phenomena. Rather, data are essentially fungible objects, which are defined by their portability and their prospective usefulness as evidence” (811)

Leonelli is writing from the perspective of the philosophy of science, and her paper is especially useful in that regard because she is able to embed the definition in recent work in the sociology of science and STS, such as Latour. The key takeaway is that data needs to be defined pragmatically – not what it is, but what it does.  And the key implication of that is that we need to stop thinking of data as representative.  Data is generated for a purpose, and in science, a central purpose is portability:

Big Data: From Human Capital to Fridge Capital

By Gordon Hull

In a new paper in Big Data and Society, Jathan Sadowski argues for a shift in how we conceive data.  Typically, it’s viewed as a commodity.  Better, Sadowski argues, to view it as capital.  Following Marx (who offers a basic formula for capital) and Bourdieu (who extends it to cultural and social capital), Sadowski proposes: “Data capital is more than knowledge about the world, it is discrete bits of information that are digitally recorded, machine processable, easily agglomerated, and highly mobile. Like social and cultural capital, data capital is convertible, in certain conditions, to economic capital” (4)  The importance of the formulation is that it allows us to understand why companies spend all their time collecting data even for which they have no planned use: data is subject to the logic of capital accumulation.  Like money, data becomes something the accumulation of which is its own object.  Sadowski: “the imperative, then, is to constantly collect and circulate data by producing commodities that create more data and building infrastructure to manage data. The stream of data must keep flowing and growing.” (4)  That is, “the capitalist is not concerned with the immediate use of a data point or with any single collection, but rather the unceasing flow of data-creating. This point is illustrated by the fact that data is very often collected without specific uses in mind.” (4)

From Marx to Foucault, via Althusser

By Gordon Hull

As is well-known, Foucault pretty-much detested orthodox Marxism and the PCF.  At the same time, his relation to Marx’s own thought, and that of Marx’s better commentators, is more complex.  One way to approach this topic is via primitive accumulation (recall here).  Another is by way of intermediaries.  Here I’d like to consider what is, as far as I know, an undiscussed connection in a late essay of Althusser’s (as always, I welcome references).  In a paper in the recent Marx & Foucault anthology, Julien Pallotta outlines what he takes to be evidence that Foucault is responding to Althusser’s “Ideology and Ideological State Apparatuses” (1970) in his Punitive Society lectures (1973).  In particular, Foucault wants to argue that: Althusser doesn’t realize power is constitutive rather than reproductive/productive; that you need to look at more than wage relations to understand the reproduction of capital, and what you’ll discover is a whole process of moralization and control of the worker so that he’s reproduced and ready to work (capital thus needs workers to save against unemployment or disease etc., even as it works to “free” the worker); and there’s thus a process of subjectification which Foucault pursues in a lot more detail than Althusser.

It seems to me that we have something like an Althusserian response in his later “Marx in his Limits” ([ML] 1978; published in Philosophy of the Encounter, references to this edition).  No, I’m not claiming that Althusser had access to Foucault’s lectures.  In any event, Althusser’s essay is a long and rambling piece, addressing the general idea of a crisis in Marxism.  It also does not reference Foucault directly.  What I am claiming, and what legitimates reading this essay as partly a response to Foucault, is that it seems to move in a Foucauldian direction on the points Pallotta emphasizes.

On the Neoliberal Subjectification of Children

If you're raising kids now, this won't surprise you.  But it's still depressing.  Basically, the more income inequality a country has, the more intensive parenting is - the more kids are taught that "hard work" is important, and the less that they are taught that "imagination" is.  This holds true between countries (the U.S. and China are more intensive than Sweden and Japan) and within countries over time (the U.S. has been getting worse since the 1980s, and Spain better).

Biometeric Chicanery

Let’s say the state passes a law that says that restaurants may not put worms in hamburgers, and that customers can sue those that do. Your kids eat at the local Annelids franchise on the way home from school, and you later discover that the burgers contain worms. You sue the restaurant, and in response, it says that since your kids didn’t get sick from the experience, it only “technically” violated the law, and you therefore have no basis to either collect damages or force them to stop. That is, on the face of it, a pretty stupid construction of the law, since it would make it totally unenforceable. It is also, more or less, how Facebook, Google, and Six Flags Great America think you should read the Illinois Biometric Privacy Information Act (BIPA).

In a unanimous ruling yesterday, the Illinois Supreme Court said otherwise. The Act regulates companies that collect biometric information like fingerprints and face scans. In the case at hand, the amusement park used thumbprints to identify customers who had bought a season pass, in order to admit them quickly and to stop people from sharing passes (you know the second reason is the real one; since when do amusement parks worry about long lines?). If the company wants to collect such information, it has to inform customers what they’re doing in writing, and get affirmative consent. In particular, the company must “inform[] the subject or the subject’s legally authorized representative in writing of the specific purpose and length of term for which a biometric identifier or biometric information is being collected, stored, and used” (cited in para 20).

This is notice and consent privacy as it should be! There’s a lot of reasons why I don’t think notice and consent privacy actually works – I called it a “successful failure” because the main effect is to teach us that privacy is something we should sell off but without actually protecting privacy. Nobody knows what they’re consenting to, the privacy notices are impossible and long and incomprehensible, and so on. Six Flags et al don’t even get that far: they argue that they don’t actually have to follow the law. So for them, privacy should just be a failure.