New APPS: Art, Politics, Philosophy, Science

ToS and the Subject Position of Website Users

By Gordon Hull

As one knows, online privacy policies (and access to the Internet in general) are generally conditioned on a user’s acceptance of some sort of boilerplate terms of service.  Lots of people (myself included) have complained about this state of affairs as attempting to get users to consent to all sorts of practices by way of reams of unintelligible legalese.  In addition to allowing unlimited data collections, these contracts often include mandatory arbitration provisions, which means that they compel users to take disputes with the sites to arbitrators selected by the company, rather than taking them to courts.

In other words, the idea is that using the product or service constitutes consent to a series of wildly one-sided terms that the user probably could not understand if she tried.  There is certainly no chance of negotiation or bargaining involved.  As Julie Cohen put it, “the conception of consent emerging from that default condition is unprecedented in the law of contracts or any other body of law,” and more closely resembles older status contracts than the contracts of modern liberalism (58-9).  The result is “a form of Kabuki theater that distracts both users and regulators from what is really going on” (59).

In a recent paper, Woodrow Hartzog and Neil Richards detail this state of affairs in terms of contract theory and its imaginary of two autonomous individuals negotiating and agreeing to terms.  They argue that:

“Consent is most valid when we are asked to choose infrequently, when the potential harms that result from the consent are easy to imagine, and when we have the correct incentives to consent consciously and seriously. The further we fall from this gold standard, the more a particular consent is pathological and thus suspect” (1465).

The design of notice-and-consent privacy regimes is deeply pathological from this point of view.  Consent is often unwitting – consumers don’t understand either the terms or the technology behind them.  They also don’t understand the consequences and risks (which is entirely expected, given that they are futural and difficult to visualize).   If not fully coerced, consent can be induced by both the fact that it is difficult now not to use the internet (so no opt-out) and both ISPs and networks are de facto monopolies (so no market competition).  Various website design techniques make opting out difficult: pop-ups that cover up the screen, browser tabs with no ‘back’ button, and various techniques of shaming (“Yes! I want this product.  No, I choose to die a lonely death”).  And of course there is the question of children: COPPA only protects children up to age 13, even though contractual consent typically starts at age 18.  And kids can easily get around age checks anyway.

If we step back from the normative arguments about why this situation is abusive or otherwise bad, I think there’s an interesting point to be made about subjectivity here.  Basically, the sites are trying to construct a legally cognizable subject position that users then occupy.  Both steps are important.  The contractual language presented in the ToS defines the subject position, and it seems to me that it’s important to distinguish this subject position from a few alternatives. First, this is not the traditional subject of law.  That position is foreclosed by the lack of availability of the courts.  Disputes are to be settled by a privatized procedure.  Second, it’s not the subject of administrative procedure either, such as recently upheld by SCOTUS in patent arbitration.  That procedure also allows an appeal to courts.  Third, it’s not the position of the disciplinary (?) subject that consumes mass media: there is no pretext to contract when you open a book, as Hartzog notes in an earlier paper on these contracts.  In short, I think this is a quite specific subject position constructed by the technology companies for their own advantage.

There is also a split between the structural subject position and the phenomenological experience of users.  Users are encouraged by the sites in question to view themselves as free and emancipated by the technology, and as empowered by its affordances.  They are (for obvious reasons) not encouraged to view themselves as signing away their rights.

The gap between user experience and described subject position leads to the second question: whether users can be said to occupy this subject position, i.e., whether these contracts are enforceable.  Can technology companies rely on the coercive power of the state to define the subjectivity of users on their terms?

It is the position of the technology companies that use of their products constitutes acceptance of the terms of service; sometimes this requires clicking a button.  Courts have been generally unwilling to say that the contracts are objectively unenforceable as unconscionable or otherwise inconsentable (though Hartzog and Evan Selinger more recently make the case that facial recognition ought to be the sort of thing that someone cannot consent to – the harms are potentially too great and difficult to understand).  This means that the question legally has come down to whether the notice and consent procedures are adequate.  Hartzog’s earlier paper suggested that, as of roughly 2010, courts had been most likely to refuse to enforce ToS on casual users – those who just read a website but do not otherwise particularly interact with it.  Still, the law was inconsistent and this emerging de facto carve-out was far from either settled or explicit.

Here, a recent survey of the case law by Nancy Kim is encouraging.  She reports that the case law is still very inconsistent, and users often lose.  But: there’s a movement toward demanding more of websites:

“The standards of “notice” and “manifestation of assent” remain the same, but how those standards are applied varies depending upon the facts of the case and the jurisdiction. Berkson v. Gogo LLC and Nguyen v. Barnes & Noble, Inc. have been particularly influential in helping inform the application of the standards. Reflecting the influence of these two cases, courts have started to assess the reasonableness of notice by evaluating the website experience from the perspective of the offeree and by considering how the drafter chose to present terms. Thus, instead of asking why the offeree failed to read visible terms, more and more courts are asking why the offeror failed to draft terms in a more conspicuous manner. As the court in Rushing v. Viacom Inc. emphasized, the burden is on website owners to “put users on notice of the terms to which they wish to bind consumers.” Accordingly, courts are increasingly asking for two types of evidence from drafters. The first is in the form of screenshots or webflows that demonstrate how the terms were presented to plaintiffs. The second is in the form of the drafter’s internal records that document that the plaintiff actually accessed the website at the time the notice was allegedly presented.” (1693)

There’s a lot to be done here, of course, but it’s nice to see some legal pushback, and to see how courts understand evidence and other traditional legal concepts in this context.  Kim cites several cases where courts determined that reasonably prudent users would not realize that they were entering into a contractual relation – for example, there was a hyperlinked “terms of service” but it was buried several pages into a website and well below the prominent “click here for the next step of your purchase.”  Nearly all of the cases Kim cites are about the enforceability of mandatory arbitration clauses, which suggests both the specificity of the subject position the websites are constructing, and the extent to which its enforceability is an artifact of their power over not just users but the state.

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.

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?

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)

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).

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.”

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).

Malthus’ Marshmallow

By Gordon Hull

We’ve all heard of a version of the experiment: you set a kid down with a marshmallow, and tell him that if he can sit there and not eat it for a while, he can have two.  Some kids can do it, and others can’t.  A famous paper suggests that whether the child has the willpower to wait is predictive of his future success in life.  Apparently, not so much.  According to a piece by Jessica McCrory Calarco in the Atlantic, new research casts this finding into doubt.  It seems that the original study enrolled fewer than 90 children, all of them selected from Stanford’s lab school.  Let’s just call that an unrepresentative sample.  A new, larger and more representative study concludes that willpower isn’t what’s driving the result; it’s socioeconomic status.  As Calarco puts it, “the capacity to hold out for a second marshmallow is shaped in large part by a child’s social and economic background—and, in turn, that that background, not the ability to delay gratification, is what’s behind kids’ long-term success.”  For example, once you factor in whether the mother has a college degree or not, the children’s ability to wait wasn’t predictive:

Facebook and the Dispossession of Preferences

By Gordon Hull

A little more than a year ago, I floated a version of the thesis that Big Data functions as a form of capitalist accumulation by dispossession.  “Accumulation by Dispossession” is David Harvey’s term for what Marx called “primitive accumulation,” and the basic idea is that capital has to extract value from individuals in a way that pushes them into its system of value extraction.  It does that by depriving them of other sources of value.  For example, the enclosure laws in 16^th-Century England served to dispossess commoners and small-scale farmers of the ability to subsist off the land, and so thrust them, “free” into the urban labor pool.  Absent this initial dispossession, the formation of the urban market in “free labor” would have been impossible.  My argument focused on the dispossession of preferences, and was that data analytics function to deprive us of the capacity to form and express preferences outside of the logic of capitalist markets.  That is significant because the more our “preferences” are restricted to those things that we can buy, the more our lives are determined by market logic – and the more things that exceed market logic become invisible.  We are dispossessed of the ability to imagine life differently.

So.  Back to Facebook.  A recent piece by Sam Biddle in the Intercept, based on a leaked internal FB document, suggests that Facebook is deeply engaged in exactly this process.  According to Biddle:

Hostile Information Architecture

By Gordon Hull

Surprise! Facebook is back in the news and the doghouse, this time for allowing vast amounts of user data to find its way to Cambridge Analytica, which then used it to try to elect Donald Trump.  The only surprise is that anyone is surprised.  I’ll review why that is first, then offer a term that gets at what I take to be the real problem: we live in a deliberately-created hostile information architecture.  Let’s first rehearse why the FB-Cambridge Analytica nexus is not a surprise.

Property as Juridical and Biopower (part 3, with a little bit about subjectification)

By Gordon Hull

In the two previous posts, I first suggested that Thomas Merrill’s logical argument for why the right to exclude was the sine qua non of any conception of property was inconclusive.  I then offered a brief reading of the Foucauldian distinction between juridical and biopower, applying it to Locke to suggest that in Locke’s case, both aspects of power were present, but juridical was dominant.  In what follows, I want to argue that the opposite is the case with the contemporary Demsetzian account: here, biopower is dominant.  In other words, a look at endpoint historical instances of property theory suggests that the view of power underlying them has changed from Locke’s time to ours, even as the (quasi-juridical) right to exclude remains a common thread.

To return to Merrill’s thoughts on exclusion, how might we combine exclusion with Foucauldian theories of power?  An initial argument is straightforward, and goes something like this: any conception of property that says the right to exclude is essential retains at the very least that much of a juridical understanding of property.  Since rights are an aspect of juridical power, and since juridical power is about the right to repress and to prevent, it’s easy enough to see the exclusionary right as juridical.  Merrill’s arguments about the priority of the right to exclude over the right to use and develop suggests that any biopolitical emphasis on optimization is ultimately secondary to a basic ability to repress.  Importantly, Merrill extends his argument to commons-based regimes: any internal use privileges are secondary to the initial ability of the villagers to exclude non-members.  In short, even as we increasingly live by biopolitical regimes, juridical power retains its force at the very core of those regimes: the property right which has been the central feature of capitalism.

Intellectual Property, Creative Commons and Neoliberal Biopower

By Gordon Hull

In “Intellectual Property’s Leviathan,” Amy Kapczynski argues that both advocates of strong IP protection, and critics from the creative-commons (CC) side tend to view the state in the same way: “both those who defend robust private IP law and their most prominent critics … typically describe the state in its first instance as inertial, heavy, bureaucratic, ill-informed, and perilously corruptible and corrupt” (131-2).  On the pro-IP side, neoliberal economic doctrine (she cites Hayek) view the state’s role as establishing markets and getting out of the way.  The state otherwise lacks the information to decide winners and losers efficiently, and in any case, it would tend to be corrupted by political or other sectarian interests (ignore for the moment the corruptibility of markets).  On the creative commons side, which Kapczynski identifies with Yochai Benkler and Lawrence Lessig, there is a tendency to adopt exactly the same view of the state: “the commons, they suggest, is a concept that seeks not only to liberate us from predatory and dysfunctional markets, but also from predatory and dysfunctional states” (137).  As she points out, IP does present a number of obvious instances of regulatory capture, so the fear is not an irrational one.  The irony behind this distancing, however, is that both views also require the state to be a functioning entity capable of creating and executing reasonably coherent policy.  For the pro-IP camp, the state has to be able to administer a property regime (and a complex regulatory bureaucracy); for the commons camp, the state has to be able to do things like fund basic research through agencies like the NIH.

Kapczynski’s point is an important one, and I have only a couple of things to add.  First, she notes that the commons theorists tend to treat infrastructural projects and commons-based private ordering systems in the same camp.  As she notes, this is a strange move:

Revising Foucault on Neoliberalism: the Role of Monopolies (part 2)

By Gordon Hull

As I suggested last time, the current neoliberal expansion of IP hinges on the acceptance of monopolies, and the relation between deadweight loss (as advanced by Arrow) and incentives theory (as advanced by Demsetz) is accordingly essential to understanding it.  Here I want to expand on that point, and then say something about contemporary theory.

The debate is one that Demsetz’s side is winning.  When term limits came before the Supreme Court in Eldred v. Reno, a set of seventeen economists – including such neoclassical luminaries as Arrow, James Buchanan, Ronald Coase, and Milton Friedman – submitted an amicus curiae brief to the Supreme Court opposing the 1998 Copyright Term Extension Act (CTEA).  These economists made arguments precisely in terms of incentives and deadweight loss: a further increase in term length is highly unlikely to make a meaningful difference to incentives to create works, while likely to burden the public with reduced access, and other creators with greater licensing fees.  They conclude:

Revising Foucault on Neoliberalism: the Role of Monopolies (part 1)

By Gordon Hull

In rereading Philip Mirowski’s critique of Foucault on neoliberalism (as it’s presented in Never Let a Serious Crisis Go to Waste, his book on the 2008 financial crisis), I noticed a limit in Foucault’s analysis that I hadn’t really thought about before.  Although Foucault correctly sees that a key (if not they key) feature in the transition from classical liberalism to neoliberalism is the realization that markets are something that the state can create and curate, he does not see that neoliberalism also puts a lot of weight on the neoclassical tolerance for monopolies.  This is a significant reversal from classical liberalism.  I work on intellectual property, which is a legal regime that attempts to create markets in intellectual goods by way of granting monopolies to their creators, which means it’s hard to ignore the tolerance of monopoly.  But the point is worth expanding on more generally.

As Foucault points out (as will be apparent, all of my references will be to Birth of Biopolitics; I’m not aware the topic comes up elsewhere in his work), classical liberalism – the “liberal art of government” (BB 65) – requires anti-monopoly legislation for the “freedom of the internal market to exist” (BB 64).  Competition, if left unchecked, will tend to lead to monopolies.  By the New Deal, and the political opposition is engendered, liberalism faced a “crisis … due to the inflation of the compensatory mechanisms of freedom” (BB 69) such that anti-monopoly legislation could be perceived as part of a “’legislative strait-jacket” (BB 68).  The ordo-liberals thus pick up on the “problem of competition and monopoly” but “do not depart in any way from the historical development of liberal thought” (BB 119).  For early neoliberalism, the “problem will be to demonstrate that monopoly is not in fact part of the economic and historical logic of competition” (BB 134).  Instead, they look at what non-economic policies are supposed to have led to monopolies, and argue that competition and markets do not, without these external distortions, lead to monopolies.  They also reframe the problem with monopolies, which is that they will distort the operation of the price mechanism (BB 136, citing von Mises).  The essential claim is thus that a monopolist will have to charge market prices, or competition will unseat him.  So intervention is not necessary (BB 137).

Net Neutrality, Bears Ears and Primitive Accumulation

By Gordon Hull

Ajit Pai is the Marie Antoinette of the Trump Administration.  How else can you explain his decision to do a little skit last week, in which he pretends that his chairmanship of the FCC is a part of a plot by his former employer, Verizon, to ensure full regulatory capture of the FCC?  This of course while he was inside a cozy dinner, ignoring people outside protesting his impending vote to end Net Neutrality, and while he claims the support of millions of provably fake comments?  If that moment put the sheer hubris of the Trump administration on display, then surely its naked appeals to the worst kind of partisanship was Pai’s attempt to deflect criticism of his decision by companies like Twitter.  There, his argument was that Twitter, not he, is an enemy of the open internet because it’s (supposedly) too liberal.  As for the millions of provably fake comments, Pai can’t be bothered to investigate, and won’t let anybody else do so either.

Gaslighting in the FCCorporate Attack on Net Neutrality

By Gordon Hull

As part of its war on all things done during the Obama administration, the Trump administration is planning to do away with Net Neutrality rules.  Those rules, announced in early 2015, established that Internet Service Providers must treat all traffic across their networks equally.  Absent such rules, they could favor their own content over that of their competitors, favor content providers who are willing and able to pay extra for faster service, disfavor content that they don’t like (in the only bit of possible karmic justice here, many of them could make it much harder for radical white terrorists to organize online), and so forth.  The “FCCorporate” in my title is deliberate, and it’s of course designed to indicate regulatory capture.  But it also indicates something particularly insidious: regulatory capture by way of gaslighting.  First, a review of net neutrality.

The Neoliberal Biopolitical Two-Step: Of Patents and Banking Arbitration

By Gordon Hull

It has seemed to me for a long time that one helpful theoretical lens through which to look at neoliberalism is to understand it as a phase (or perhaps a dispositive) of biopower. This is because neoliberalism does not generally rely on juridical rules (or tried to colonize the judiciary), it pushes for the marketization of everything, and involves an elaborate state apparatus to support that marketization. It also functions as an engine of subjectification, actively attempting to turn everyone into instantiations of homo economicus, whether directly by state action, or by way of empowering private actors. Even school students are quietly taught the ropes. The incessant demands for privatization have put enormous pressure on the public sector, both in the starvation of funding cuts and the efforts to privatize it. That, in turn, has led to such monstrosities as private prisons.

That said, today’s neoliberal biopolitics obviously needs to be distinguished from the biopolitics that came before, which was, as Foucault discussed, centered at the population level, concerned with birth rates, longevity, and so on (hence the distinction is readily apparent in health policy). One of the hallmarks of the emergence of biopolitics is the rise of the administrative state; as the state comes increasingly to try to optimize the population, an elaborate administrative apparatus – a large state bureaucracy – emerges to fill these functions. This does not mean that there are no more laws. Indeed, Foucault emphasizes that the biopolitical era involves multiple sites of power, both inside and outside the state:

Foucault and Marx: on Subjectification and Exhaustion

By Gordon Hull

I have been circling around the relation between Marx and Foucault for a while, and thinking in  particular about the ways that they can be viewed as productively engaged, particularly at the intersection of primitive accumulation and subjectification (e.g., here, here and here)  This of course flies in the face of Foucault’s acerbic dismissals of Marxism, as when in the early parts of Society must be Defended, he dismisses it as “totalitarian,” or in the Trombadori interviews more generally.  But there is a renaissance of interest in the topic, and there are a number of Foucault texts only now being studied in the English-speaking world that can be brought to bear on it.  Most prominent perhaps is the recently translated “Mesh of Power” lecture, where Foucault specifically credits chapters 13-15 of Capital for moving toward a non-juridical understanding of power.  As Foucault says, what Marx shows there is that “one power does not exist, but many powers” and that power is productive, not repressive:

“These specific regional powers [delineated by Marx – GH] have absolutely no ancient [primordial] function of prohibiting, preventing, saying ‘you must not.’ The original, essential and permanent function of these local and regional powers is, in reality, being producers of the efficiency and skill of the producers of a product.  Marx, for example, has superb analyses of the problem of discipline in the army and workshops.”

What I want to do here is extend some of the credit to the “Fragment on Machines” section of the Grundrisse. 

Is Intellectual Property actually Property?

By Gordon Hull

This sounds like a trick question, but it’s not.  It’s also currently before the Supreme Court, about which more in a moment.  First, however, let me summarize the case for why IP isn’t really “property” in the ordinary sense, even if we use the word.  In a paper from a little more than ten years ago, Michael Carrier proposed that although we claim that IP is a “property,” and treat IP as property in some respects, we do not actually treat it as we do other forms of property.  In the first step, we have come to treat IP as property “not only in the essentially unlimited scope and duration of its initial rights but also in the ubiquitous assertions that IP is absolute property” (12).  This is evident, Carrier suggests, in a number of ways.  In copyright, for example, term length, scope, and subject matter are all increasing.  In patents, enforcement is increasing (especially with the creation of the Federal Circuit, which stopped a lot of forum shopping, although the Eastern District of Texas until very recently functioned as a favored forum of so-called “patent trolls”), and patent rights are more and more viewed not just as innovations, but as investments.  The result should be familiar to anyone familiar with discussions of neoliberal financialization:

Intellectual Property Theory Wars (Part 2): IP as social power

By Gordon Hull

Last time, I introduced the exchange between Mark Lemley and Robert Merges on IP theory, and made the initial case that Lemley is essentially arguing for the theoretical primacy of neoliberal biopower in intellectual property.  Merges, as will hopefully become evident below, is more interested in grounding IP in juridical notions of rights-bearing subjects.  Lemley finds such grounding not just wrong but incoherent and irrational, on the grounds that it is a refusal to use empirical evidence.  What I want to do here is dig out some of the textual evidence to support my argument, specifically by looking at some of the work Lemley puts in the “faith-based” camp.  That is, the way Lemley critiques other efforts at IP theory seems to me to exemplify the hold that Chicago has on IP scholarship.  I want to look at his treatment of three such competing views: he finds them completely unintelligible when they use a non-utilitarian form of reason (Merges), he ignores it when they argue from an economic perspective that rejects the basic assumptions of the Chicago school’s development of IP (Amy Kapczynski), and he contorts them into an unpersuasive utilitarian frame when they challenge wealth aggregation as the appropriate standard for evaluation (Madhavi Sunder).  Let’s look at these in reverse order.

Intellectual Property Theory Wars (Part 1)

By Gordon Hull

A couple of years ago, Mark Lemley, one of the most influential and prolific of intellectual property scholars, published his “Faith-Based Intellectual Property,” a manifesto against what he characterizes as non-utilitarian or non-empirical theories of intellectual property.  In other words, “participants on both sides of the IP debates are increasingly staking out positions that simply do not depend on evidence at all” (1336).  He adds, “I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith, and because the rationale for doing so is a form of religious belief” (1337).  He treats Robert Merges’ Justifying Intellectual Property (2012) as the paradigmatic example of this phenomenon, though he cites others.  A couple of months ago, Merges’ response, “Against Utilitarian Fundamentalism” appeared, arguing that it was the militant utilitarian position – which as Merges reads it assumes that “to abandon the solid world of empirical foundations is to automatically commit to a stubbornly irrational set of foundations” – that “commits precisely the error that [it] attributes to others” which “takes an extreme position, cutting off conversation and debate” (n5)

The point I want to make here (in this post and a follow-up) – and I should say that I absolutely agree with Lemley both that IP protections are too strong now, and that there is a good-sized body of evidence that supports this proposition – is that Lemley’s argument presupposes that IP is a form of biopower (or perhaps biopolitical governmentality) insofar as it sets policy, the aim of which is to optimize the welfare of the bios by pushing the “conduct of the conduct” of individuals within it toward higher levels of creative productivity (if you are uncomfortable calling that “biopower,” then it’s fine to stick with “governmentality” here – the point is the contrast with other kinds of thought).  I would also argue, though again not a lot hangs on the distinction here, that Lemley’s framework is almost entirely dependent on law and economics, as it developed out of the University of Chicago from the 1960’s onward.  In this, he is accepting what one might call a neoliberal understanding of intellectual property (on the move to law and economics, see especially William Davies).

More self-promotion: "Toward a critical theory of corporate wellness"

By Gordon Hull

Frank Pasquale and I have a new paper forthcoming in Biosocieties, "Toward a critical theory of corporate wellness."  Here is the abstract:

In the U.S., “employee wellness” programs are increasingly attached to employer-provided health insurance.  These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines.  Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale.  After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers and entrenching the view that one belongs to one’s workplace.  At the same time, their selective endorsement of health programs (many scientifically unsupported) produce a social truth of wellness framed as fitness for work.  We conclude by arguing that the public health initiatives occluded by the private sector’s promotion of wellness programs would be a much better investment of resources.

Springer puts an embargo on the final version of the paper so it can't go up on SSRN yet, but they do invite authors to share a link to the final version  on their site.  Apparently you can read it there for free, and can download if you have institutional access.  The Biosocieties link is here, if you're using a connection with institutional access.

Biopower, Juridical Power, and Patent Trolls

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

Republican Thanatopolitics

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

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

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

Squaring the Circle on Big Data, Class, Value and Primitive Accumulation

A recent paper by Hamid Ekbia presents an interesting Marxian theory of the relation between exploitation and computer networks.   The paper is intended as an intervention in to discussions of the accumulation of value in what is now called cognitive capitalism (I’ve attempted to synthesize some of that literature here).  The most interesting part of the Ekbia’s paper seems to me that he’s able to construct a coherent notion of class (or close to class – he acknowledges that it’s not quite a class in the strict Marxian sense) within those who are part of the networked economy.  In particular, he is able to locate those who are exploited and to roughly define them as a group: the “condensers.”  The problem of locating a specific exploited class is important and salient partly because there is no way for a Marxian theory of value to work unless somebody is exploited, but also because the behavior of prosumers in particular has been the subject of intense controversy, particularly on the subject of whether they produce value.  Ekbia’s contribution, it seems to me, is to show how and why some prosumers manage to be exploited.

More on the Troubling Neoliberal Privatization of Health Care

Developments this week highlight the problems with the neoliberal decision to privatize medicine in the U.S.  Certainly the Affordable Care Act (ACA), which entrenches responsibility for access to healthcare to private insurance companies and then attempts to contrive a market for patients to shop between insurance plans as some sort of proxy for shopping for doctors, is the most famous recent example of this decision.  Never mind that in market terms medicine is a classic credence good: you may not know either before or after purchase whether you are getting a good deal, and the barriers to knowing this are nearly insuperable owing to the inherent complexity of medicine and the inherent uncertainty behind most medical judgment, even perfectly executed by brilliant practitioners.  Medical care just isn’t one of those things that works well as a market good. 

Meantime, this week, President Obama signed the 21^st Century Cures Act.  This bipartisan bill makes an enormous investment in research into urgent health problems from Alzheimer’s, to opiate addition, to cancer, and continues to fund the promising developments in “precision medicine.”  This is an obvious good.  What could be wrong?  The tradeoff, beyond the now stale point that there is no investment in the social determinants of health – like urban infrastructure – is that it loosens regulatory requirements for drug approval even further.  As the Washington Post reports: