New APPS: Art, Politics, Philosophy, Science

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.

A Mysterious Scandal

By Gordon Hull

The Supreme Court just granted cert in an important trademark case, in re Brunetti.  The case concerns whether Eric Brunetti can get federal trademark registration for his FUCT line of clothing.  Although Brunetti can of course market the clothing in any case, and can claim common law trademark rights, federal registration confers a number of benefits, especially if the owner ends up litigating the mark.  A little background.

Section 2 of the Lanham Act specifies a few things that are not eligible for registration, such as official insignia of governmental entities and the identifying name, signature or portrait of a living person without their consent.  The statute also prohibits registration of a mark which:

Consists of or comprises immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute (15 USC 1052(a)).

In denying registration to scandalous or disparaging material, the Lanham Act seems to be generally biopolitical in that it is concerned with optimizing the population: independently of its viability in commerce, putting governmental imprimatur on a scandalous or disparaging mark is viewed as bad for the polity.  In the case of disparaging marks, the idea is that the use of the mark would be damaging to those targeted by the mark in question.  The First Amendment means that the government cannot stop such use, but it is also not required to reward the use with the benefits of trademark registration, and so the policy explicitly values a vision of civil discourse over commercial benefit.

Various marks were denied registration under the disparagement clause, including both those that repeat slurs assumed to disparage others (the NFL’s Washington “Redskins”) and those where members of targeted groups intend to reappropriate the terms, as in “Dykes on Bikes.”  In Matal v. Tam (2017), the Supreme Court ruled on First Amendment grounds that the government did not have the right to refuse registration to disparaging marks.  The case pitted Simon Tam, an Asian-American who wanted to register the name of his band – the “Slants” – in order to reclaim a racial slur, against the PTO, which argued that the term disparaged Asian-Americans, many of whom would find it offensive.  After the decision, Tam got his band name and the Redskins got their registration back.

Citing the Tam decision, the Federal Circuit ruled at the end of 2017 in Brunetti that the ban on scandalous marks also violated the First Amendment.

A Note on Derrida and Law (and Drucilla Cornell)

By Gordon Hull

I pass along the following with minimal additional comment, as it fills in a historical detail that I’d not known.  It’s from Peter Goodrich, a very prominent critical legal theorist at Cardozo Law School, on “the role that Derrida played at Cardozo, and less expectedly the part played by the Law School in radicalizing Derrida:”

“It was after becoming a Fellow at Cardozo that he shifted to a more political trajectory and engaged with the fight to free Mandela and end apartheid. I think he would have been surprised to learn that Cardozo radicalized him but why not? It was a two-way street, and recollecting the atmosphere and passions that circumambulated 55 Fifth Avenue back then, I think it is fair to say that Drucilla Cornell who was here at the time was a political powerhouse that few could avoid if they walked through the corridors where the faculty live” (603)

The Derrida piece that emerges from the symposium is “Force of Law,” which appeared in the (1990) issue of the Cardozo Law Review to emerge from the symposium.  Derrida’s piece revolves around his reading of Benjamin’s “Critique of Violence.”  It emphasizes a central point also found in CLS: that law is power.  Here is Derrida: “the word “enforceability” reminds us that there is no such thing as law that doesn’t imply in itself, a priori, in the analytic structure of its concept, the possibility of being ‘enforced,’ applied by force” (925)

How we are to understand Derrida as a political writer is of course a big topic; in a late interview, he distinguishes his own work in “deconstruction” from a tradition running from Luther to Heidegger, suggesting that “the ‘deconstruction’ I attempt is not that deconstruction, it’s definitely more ‘political’ too, differently political; but it would take too many words to explain this” (Paper Machine, 115).  He elsewhere insists that a “political dimension” was “decipherable in all my texts, even the oldest ones’ (Paper Machine, 152).  I’ve tried to argue that this is true for his 1968 “Plato’s Pharmacy,” and that there is a specific politics involved in ratcheting him to phenomenology.  Still, it’s hard to miss that his writings from the early 1990s forward are more obviously political than the earlier ones.  In any case, these connections can be complex; if American CLS nudged Derrida toward a more direct engagement with politics, that potentiality had to be there in the first place.

Goodrich closes with an anecdote:

“Back in 1987 I was in Eastern Europe, behind the Iron Curtain, in Russian occupied Budapest. I had been invited to lecture but when the Marxist professoriate of Etvos Lorand University Law School met me and discussed my planned lecture, they rapidly realized that this was not a good idea and cancelled the class. Sensible folks. I had a day free and decided to travel to Sopron, a city on the border with Austria where my host had a sister willing to show me round. I took the train and a copy of Jacques Derrida, The Postcard, as my reading. It did not occur to me that I needed a passport to travel inside the country but close to Sopron the police entered the train and asked for ID. My only document was The Postcard, which they scrutinized, discussed and then shaking their heads indicated that it was not enough and arrested me for a while until my host came and vouched for me. When I was next on a panel with Derrida, I told him the story. He paused and pondered for a moment and then said “I am sorry that my book was of no help.” And of course it was useless, but in the best of senses. It gave no comfort to the authorities. It provided no identification of me. It made no demand. And yet I read it on the train, I read it in the police cell. I finished it on my return. Socrates and Freud were comfortingly to hand. At random, though I am fond of quoting it: “In history, this is my hypothesis, epistolary fictions multiply with each new crisis of destination.””

 

 

On the Political Economy of Social Media: Dispossession of the Other

By Gordon Hull

 

The Washington Post has a disturbing story about how “lies become truth in online America.”  It narrates the story of two individuals.  One spends his time in Maine, dishing out deliberately fake news stories designed to troll those on the right by saying completely absurd things and then watching them blindly repeat them as truths.  Christopher Blair and his friends then occasionally wade into comments sections to chastise the vulnerable, as well as baiting people into saying racist things and getting their social media accounts removed and so on.  “Nothing on this page is real” says one of the apparently fourteen (!) disclaimers on his site; he gets up to 6 million hits from believers a month.  Blair would make up pretty much anything that aligns with stuff circulating on the far right:

“In the last two years on his page, America’s Last Line of Defense, Blair had made up stories about California instituting sharia, former president Bill Clinton becoming a serial killer, undocumented immigrants defacing Mount Rushmore, and former president Barack Obama dodging the Vietnam draft when he was 9. “Share if you’re outraged!” his posts often read, and thousands of people on Facebook had clicked “like” and then “share,” most of whom did not recognize his posts as satire. Instead, Blair’s page had become one of the most popular on Facebook among Trump-supporting conservatives over 55”

The Internet of Prison People

By Gordon Hull

In what seems like a distant, more innocent time in surveillance (viz. 2003), Andy Clark was able  to use as an example in his Natural Born Cyborgs an implanted tracking chip for pets.  Does your cat tend to wander off?  Now you can know where Whiskers is at all times! (no doubt taking a nap in the sun, and not earning his keep catching mice)  Clark’s point was to argue that we are all tool-using creatures by nature, to the point that when we speak of our “minds,” that term really needs to include at least some of the tools we use.  So the extended mind hypothesis was the point of the book, and pet-tracking an example, but Clark’s optimism was evidenced in the way that he dumped concerns like privacy together into a final chapter.  It's that ability to put the worries in the last chapter that seems dated now.

Of course, these days RFID chips are everywhere – now, apparently, in the bodies of employees (h/t dmf).  The story needs to be read, but basically an entrepreneur named Tim Westby started out by marketing RFID vending machines to prisons because prison administrators liked convenience in their contracts and because the machines could operate with a high markup (what are the inmates going to do, choose a different supplier of soda?).  Twenty years later, the business has grown to putting RFID tags on its employees and marketing smart phone apps that utilize “ping notifications and geo-fences that keep kids from leaving pre-defined areas”

Becker, Irrationality and Neoliberal Biopower

By Gordon Hull

In Sleights of Reason, Mary Beth Mader makes the point that there is an ontological distinction between the members of a normalized “population” and the individuals they represent.  Mader is talking about statistics and bell curves; as she summarizes the part of her argument that’s relevant here, “statistical social measurement is ontologically problematic on the very level of the conceptual composites expressed in statistical measures and distributions and not only on an allegedly duplicitous subsequent prescriptive application of an allegedly descriptive conceptual instrument” (45).  In other words, it’s not just that we get told that we’re “abnormal” or not living up to the norm; it’s that the way the norm is constructed also needs scrutiny.

The connection between neoliberalism and biopower – the one that Foucault seems to make in Birth of Biopolitics, but then doesn’t exactly spell out – is made crystal clear in a piece by Gary Becker that makes precisely this move in declaring that accounts of human behavior based on human rationality can nonetheless apply to irrational behavior as well.  The piece is cited often enough for the temerity of the claim that economic rationality can be applied to irrational behavior, and it clearly evidences Foucault’s claim that “American neo-liberalism still involves, in fact, the generalization of the economic form of the market.  It involves generalizing it throughout the social body and including the whole of the social system not usually conducted through or sanctioned by monetary exchanges “ (BB 243; Becker elsewhere claims that  “the economic approach provides a valuable unified framework for understanding all human behavior, although I recognize, of course, that much behavior is not yet understood” (Essence of Becker, 13, emphasis original)).  That said, what is actually going on in the discussion of irrationality becomes substantially more interesting when read in light of Mader’s point about norms and populations.

New Paper on Foucault and Parrhesia

By Gordon Hull

I'm happy to announce (shamelessly!) that my article, "The Banality of Cynicism: Foucault and Limits of Authentic Parrhesia" is now out in Foucault Studies (open access).

The abstract is:

Foucault’s discussion of parrhēsia – frank speech – in his last two Collège de France lecture courses has led many to wonder if Foucault is pursuing parrhēsia as a contemporary strategy for resistance.  This essay argues that ethical parrhēsia on either the Socratic or Cynical model would have little critical traction today because the current environment is plagued by problems analogous to those Plato thought plagued Athenian democracy. Specifically, authentication of parrhesiasts as a technique for authenticating their speech – the specific problem that the move to ethical parrhēsia in ancient Greece was designed to solve – becomes intractable in a social media environment, even with the added Cynical move to pure visibility. The problem is that contemporary society overproduces visibility as a condition for participation, which means that the context for authenticating parrhesiastic speech is one in which visibility is banalized and in which there is a surplus of speech which presents as parrhesiastic. The problem of authentication is thus a serious one, one which social media makes particularly intractable.

There's lots of papers in this issue, and I of course haven't read them yet - but they look good.

 

More on Facebook and Mental Health Privacy

By Gordon Hull

It’s not news that Facebook generates a lot of privacy concerns.  But it’s nonetheless worth keeping up a little, just to indicate how seriously we need to be concerned about the connection between Facebook and data analytics.  We’ve known for a while that automated analysis of Facebook likes can predict basic personality type.  A 2017 paper showed that targeting of advertising based on personality type was highly effective, as measured by clicks and purchases.  Facebook appears to be marketing predictive-advertising (so an advertiser can know to send you a nudge if FB software predicts you may be about to switch brands of something).

Now there’s this: an individual’s Facebook posts can apparently predict depression independently of subjective reporting (discussion here). From the study:

“Each year, 7–26% of the US population experiences depression, of whom only 13–49% receive minimally adequate treatment. By 2030, unipolar depressive disorders are predicted to be the leading cause of disability in high-income countries. The US Preventive Services Task Force recommends screening adults for depression in circumstances in which accurate diagnosis, treatment, and follow-up can be offered. These high rates of underdiagnosis and undertreatment suggest that existing procedures for screening and identifying depressed patients are inadequate. Novel methods are needed to identify and treat patients with depression.

By using Facebook language data from a sample of consenting patients who presented to a single emergency department, we built a method to predict the first documentation of a diagnosis of depression in the electronic medical record (EMR). Previous research has demonstrated the feasibility of using Twitter and Facebook language and activity data to predict depression, postpartum depression, suicidality, and posttraumatic stress disorder, relying on self-report of diagnoses on Twitter or the participants’ responses to screening surveys to establish participants’ mental health status. In contrast to this prior work relying on self-report, we established a depression diagnosis by using medical codes from an EMR.”

It seems to me that these paragraphs speak to why this technology can be so difficult to wrap one’s head around.  On the one hand, it is really important to take mental health seriously, and we live in a neoliberal society that both generates mental health problems and offers problematic band-aids to solve them, including moves by Pharma to drum up purchases of drugs with dubious clinical efficacy.  The study is classic big data: by looking at actual EMR records and correlated FB posts, the authors were able to train the algorithms with existing known cases of depression.  What it discovered was that certain words in posts predict a future diagnosis of depression pretty well, better as you get closer to the diagnosis.  And it doesn’t rely on self-reporting. Nor does it rely on a primary care physician spotting the problem, which the study suggests is part of why depression is so under-diagnosed.  As the authors put it, “the potential exists to develop burdenless indicators of mental illness that precede the medical documentation of depression (which may often be delayed) and which, as a result, could reduce the total extent of functional impairment experienced during the depressive episode.” There’s a chance here to do some real good for public health at a relatively low cost (though one should raise a digital divide worry: those who do not leave a sufficient social media trail – say, the homeless, who are at very high risk for mental health issues – will fall further through the cracks).

On the other hand, want to buy a list of depressed patients to sell those dubious remedies to?

Capitalism's Headache

By Gordon Hull

I mean the title of this post literally. A recent study that surveyed global neurological disease incidence concluded that neurological disorders now are the leading global cause of disability, and that their rates are rapidly rising.  A substantial portion of this is due to increasing rates of Parkinson’s Disease, Alzheimer’s and other dementias; as the study concludes, “the most striking change has been the more than doubling of people in the world who die or are disabled from Alzheimer's disease and other dementias over the past 25 years.”  The primary risk factor for these conditions is age, and the increase is clearly tied to increasing life expectancies.  It may also in part explain why women (who generally have higher life expectancies than men) have a 22% higher burden from these diseases than men.  Other results were similarly expected: the global rates of communicable neurological conditions like meningitis were declining due to vaccination programs; their burden was highest in low-income regions.  The study concludes:

“In conclusion, we have shown that neurological disorders are a large cause of disability and death worldwide. Globally, the burden of neurological disorders has increased substantially over the past 25 years because of population ageing, despite substantial decreases in mortality rates from stroke and communicable neurological disorders. Because low-income and middle-income countries still have a long way to go through the demographic transition of reductions in child mortality and population ageing, the number of patients who will need neurological care will continue to grow in the coming decades. It is important that policy makers and health-care providers are aware of these past trends to be able to provide adequate services for the growing numbers of patients with neurological disorders”

This sort of headline, especially about the staggering burden that Alzheimer’s is going to place on the U.S. healthcare  system as baby boomers enter old age, is relatively common.  Buried in the headline-grabbing statistics, though, is a somewhat alarming data point: the rise in headaches.  Between 1990 and 2015, the global prevalence of migraines shot up 49.6%, tension-type headaches 49.2%, and of medication-overdose headaches by 57.8% (table 1 in the linked article).  The highest rates of headaches were in high-income regions. There is also a fairly sharp drop in the rate of headaches at around age 65 in the table accompanying the graph.

One hesitates to interpret too much on a quick read (there is a lot of data; the article is open access, so those with better quantitative skills should dive in!), but it’s hard not to notice that the years from 1990 to 2015 are also the years that global capitalism took its victory lap over communism, and celebrated with a neoliberal intensification of staggering proportions.   It is also hard not to notice that 65 is retirement age.

Franco (“Bifo”) Berardi has  been saying for a long time that the rise in global mental health disorders needs to be read as a symptom of capitalism’s intensification, a point on which Will Davies concurs (I intend to do a post on this at some  point).  In Berardi’s case, though, the argument has the feel of speculation.  But here we have a data point that is difficult to explain otherwise: quite independently of how long one lives, life today, as Lenin once said of Hegel’s Logic, seems to be “a best means for getting a headache.”

Bakhtin’s Carnival, Genealogy, History

By Gordon Hull

Foucault’s use of Nietzsche to make the distinction between history and genealogy in “Nietzsche, Genealogy, History” is well-known.  What is less well-known, I think (perhaps I am projecting again, but I had forgotten this passage until I saw a note I’d made to it the other day), is a very clear presentation of the distinction in Society must be Defended.  Here I want to tentatively suggest some connections between the language of SMD and some of Foucault’s other writings.  The SMD context is a discussion of state historiography and archiving in the 18^th Century.  Foucault announces “another new excursus,” and writes:

“The difference between what might be called the history of the sciences and the genealogy of knowledges is that the history of sciences is essentially located on an axis that is, roughly speaking, the cognition-truth axis, or at least the axis that goes from the structure of cognition to the demand for truth. Unlike the history of the sciences, the genealogy of knowledges is located on a different axis, namely the discourse-power axis or, if you like, the discursive practice-clash of power axis” (SMD 178).

He then suggests that if one is to do a genealogy of knowledges of the 18^th Century, the first thing one needs to do is to “outwit the problematic of the Enlightenment” (ibid.), which is to say that one has to avoid the urge to talk about the emergence of reason, the fading of ignorance, and so forth.  In other words, one has to avoid the era’s framing of itself.  Instead, one should see:

“an immense and multiple battle, but not one between knowledge and ignorance, but an immense and multiple battle between knowledges in the plural—knowledges that are in conflict because of their very morphology, because they are in the possession of enemies, and because they have intrinsic power-effects” (SMD 179).

I want to flag the text here because it helps to illuminate the political stakes of genealogy, and thus of writing history, quite clear.  This is of course also in “Nietzsche, Genealogy, History,” especially when he talks at the end about what genealogy might do.  I want to focus on the first, which is parodic or carnivalesque.  Foucault comes across there as somewhat cryptic; the genealogist “will push the masquerade to its limit and prepare the great carnival of time where masks are constantly reappearing” and so “genealogy is history in the form of a concerted carnival” (Foucault Reader, 94).

Big Data + Health Insurance = Bad

Big data can - and very often is - used to discriminate.  It was only a matter of time before health insurers started using it to predict who might be more likely to get sick, and to charge them more (yes, they've figured out how to circumvent the ACA).  ProPublica has the story here.

Be very afraid, especially if you recently moved to a smaller house or lived on a poor street growing up.  And remember that automated analysis of Facebook likes indicates that if you like hello Kitty, you're more likely to be depressed.  And that can be $$$.

Chicago Antitrust and Neoliberalism’s Blindspots

By Gordon Hull

As Foucault emphasizes in Birth of Biopolitics, one of the signal moves in American neoliberalism is the extension of economic analysis into all aspects of life.  As he puts it, the American neoliberals “try to use the market economy and the typical analyses of the market economy to decipher non-market relationships and phenomena which are not strictly and specifically economic but what we call social phenomena” (BB 239-40).  This “absolute generalization” of the market form “functions … as a principle of intelligibility and a principle of decipherment of social relationships and individual behavior,” enabling a “sort of economic analysis of the non-economic” (BB 243).  Foucault uses the neoliberal analysis of crime as exemplary.  Rather than pursuing the panoptic dream of zero-crime, or earlier theories about “the delinquent” as a character type, the neoliberal treats crime as an economic activity: we are all potential criminals; the key to lowering crime is to raise its cost.  This has sometimes surprising results, one of the most important of which is that one should not spend more social resources on combatting crime than the crime costs.

For example, Jeff Sessions and his stupid “zero-tolerance” policy are not just barbaric: they are economically irrational.  Tinpot Dictator must have an inkling of this, which is why he tries to say that all immigrants are gang members, so as to make them look more costly than they are. Sort of like ticking-time-bomb scenarios try to make torture look efficient. Yes, I know he is motivated by racism. Posner & co. never let conscious motives get in the way of a good description.  You just assume that Tinpot has stable preferences (racism and narcissism and more racism), and then “all human behavior can be viewed as involving participants who maximize their utility from a stable set of preferences” (Essence of Becker, 13).

Foucault’s “Analytic Philosophy of Politics”

By Gordon Hull

The current issue of Foucault Studies contains the first English translation of a lecture Foucault gave in Japan in 1978.  This “Analytic Philosophy of Politics” is essential reading if you have an interest in the transition between Foucault’s “power” and “ethics” work and/or his later understanding of power and resistance.  The Tokyo lecture underscores a profound continuity in his thought along a number of lines. Here are a few things that emerged for me on a first reading (there are also references to Confucianism that I am totally unqualified to address, so I will simply note that they are present):

(1) Foucault proposes that the question of power emerges in the wake of fascism and Stalinism, which he treats as both singular but as tied to “a whole series of mechanisms that already existed within social and political systems” (189).  That is, movements now challenge “this overproduction of power that Stalinism and fascism clearly manifested in its stark and monstrous state” (189).  The emphasis on Stalinism and fascism corresponds to the lectures that bookend Society must be Defended a few years prior, where Foucault begins by critiquing “totalitarian” discourses in the form of orthodox Marxism and closes with an analysis of state racism (exemplified by the Nazis) as a form of biopower.  So too, at the beginning of SMD, he refers to some of the same movements – anti-psychiatry, the recovery of “subjugated knowledges” that are the examples in the Tokyo lecture.

(2) Second, Foucault is interested in the role of the philosopher and philosophy.  This is not a surprise given his other interviews and essays on the topic, but it’s worth mentioning that he explicitly poses as a problem that philosophies of liberation presented during the 19c have become tools of oppression in the 20^th.  As he puts it, “each and every time these philosophies of freedom gave birth to forms of power that, whether in the guise of terror, bureaucracy, or even bureaucratic terror, were the very opposite of the regime of freedom, the very opposite of freedom as history” (191).  As with the critique of Marxism and Freudianism at the start of SMD, the text here underscores why Foucault is skeptical of revolutionary discourses and thinks they may be a part of the problem, not the solution.  Thus, “one should no longer imagine that one can escape relations of power all at once, globally, massively, through a sort of radical rupture or a flight without return” (193).

In this, Foucault is on a page very similar to Deleuze, at least on this point.  A moment in an interview of Deleuze by Antonio Negri is instructive. In it, Negri asks about a “tragic note” he detects in Thousand Plateaus. Deleuze responds with a gesture to Primo Levi and a “shame at being human,” of being tainted with what people have done. “This,” he adds, “is one of the most powerful incentives toward philosophy, and it’s what makes all philosophy political…. What’s so shameful is that we’ve no sure way of maintaining becomings, or still more of arousing them, even within ourselves” (Negotiations, 171-3).

Instead of wanting to know if power is good or bad, etc., “one should simply try to relieve the question of power of all the moral and juridical overloads that one has placed on it, and ask the following naïve question, which has not been posed so often … what do power relations fundamentally consist in?”  In so doing, the job of the philosopher is to “make visible what precisely is visible, which is to say to make appear what is so close, so immediate, so intimately connected with ourselves that we cannot perceive it” (192).  The remark certainly recalls the early Heidegger on the question of Being, but it’s here put in service of understanding power as a form of subjectification: the later part of the Tokyo lecture is precisely interested in pastoral power as a technique of individuation.

Huuuge Win for Privacy

By Gordon Hull

Santa Claus knows when you’ve been sleeping, knows when you’re awake, and knows if you’ve been bad or good.  Your phone knows all of that too, because it knows exactly where you are.  It then sends all that information to your carrier, which keeps it in its logs for five years.  Stay out late drinking last night?  Your phone knows. Had an affair a couple of years ago? Your phone knows that, too. Get up early for a workout and then work?  Yep, your phone knows that too.  Up until today, it was pretty easy for the police to know it as well, as they were able to subpoena your phone’s geolocation records from your phone carrier.  Under the “third party doctrine” as articulated primarily in Smith v. Maryland (1978), you lose any expectation of privacy over information that you "voluntarily" hand over to someone else – this this case, your phone carrier.  In a 5-4 opinion today, Chief Justice Roberts and the four liberals on the Court refused to apply third party doctrine to phone location data.  Justice Roberts writes:

“We decline to extend Smith and Miller [a case where the government subpoenaed bank records- GH] to cover these novel circumstances. Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI. The location information obtained from Carpenter’s wireless carriers was the product of a search”

As Roberts noted at the start of the opinion (which, btw, is a model of legal writing), the Fourth Amendment was originally motivated in substantial part by concern over generalized warrants.  His conclusion is therefore not a surprise.  Indeed, tapping phone records pretty much achieves everything a general warrant hoped for; as Roberts notes, “a cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales. Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user” (internal citations omitted).  And of course it does so with absolutely zero police effort.  When the GDR Stasi wanted to track your every move, they at least had to assign an officer to do it.  Here, the data is collected automatically and without human intervention.