Tuesday, March 10, 2009

Summary: Human Autonomy, Technology and Law

I’d like to thank our bloggers for their many thought-provoking posts: Frank Pasquale, Jennifer Chandler, Kieran Tranter, Gaia Bernstein, Lyria Bennett-Moses, Lisa Austin, and Samuel Trosow (also thanks to Jennifer for suggesting the blog topic). Many thanks as well to Jim Chen for administrating the techtheory blog, and for helping out with technical glitches. Final thanks to those individuals who provided helpful comments.

At the outset of this blog on the topic of 'human autonomy, technology and law', we asked whether we controlled machines or whether machines controlled us, and what did all this have to do with law.

Not surprisingly, the diversity of views expressed on this topic resists any straight-forward summary.

Our bloggers and commentators explored technologies that included cosmetic surgery, nuclear weapons, cell phones, surveillance technologies, digital copyright protections, databases, Facebook, neurocosmetics, reprogenetics, email, videotext systems, Blackberries, Neanderthal tools, airplanes, handguns, virginity-restoring surgery, human growth hormones, insulin, genetically-modified canola, fMRI, and even parenting styles.

Areas of law discussed included torts, copyright, privacy, cyberlaw, space law, virtual law, civil procedure, contracts, property, constitutional, family, labour, and mental health (nobody mentioned my personal favorite ‘tax law and tech change,’ but don't get me started on that one...).

A number of our bloggers drew from works from non-legal academic disciplines with an emphasis on the ways that philosophers, sociologists, political scientists, historians and economists have struggled with technology theories as well as perspectives on the relationship between human agency and technology. Views ranged from the near-impossibility of staving off technological determinism ('those darn machines do control us!') to emphasizing the ways that people adopt and successfully resist technology ('we aren't going to let mere machines push us around!').

Those bloggers who fell toward the ‘machines control us' perspective tended to support more interventionist legal policies while those who identified more closely with the human agency position seemed to take a more 'wait and see' attitude and were reluctant to change the legal status quo in an aggressive manner as this could unduly upset traditional legal interests.

Many comments seemed to fall within the middle-ground that accepts the potential for human willpower within technological determinism. This position appears to track the 'soft determinism' perspective articulated by some technology theorists (which, in turn, is related to the philosophical notion of compatibilism that holds out the prospect of free will in a deterministic universe). This perspective could require a careful examination of the facts and circumstances of each legal issue to see whether technological determinism could harm legal interests.

Accordingly, how one thinks about the blog topic can carry important consequences with respect to both legal analysis and the ultimate legal/policy recommendation meant to address situations where law and technology intersect.

A final note: a collection of works on general law and technology theories and perspectives, including some by repeat bloggers at this site, has recently been published in a book entitled Law and Technology: An Interface from Amicus Books, Icfai University Press (edited by K Prasanna Rani).

Thursday, March 5, 2009

Bringing in some economic analysis (2)

The development of a general theory of law, technology and society should go a long way towards providing a coherent lens from which to understand and intervene in the information / information technology policy process on several levels. In building this theory, attention needs to be paid to economic analysis, and we should remain mindful of the disparate theories and assumptions that inform different economic schools of thought.

A major weakness in the information / communications/ technology policy process (I’ll use information policy as a catch-all term that encompasses all of these and which includes substantive areas such as intellectual property, privacy, censorship, network policy, etc) stems from the failure to question many ‘taken for granted’ assumptions, particularly those about the nature of our economic system. As history shows that economic systems change over time, it is a mistake to assume one particular system as being universal and immutable.

Yet much policy making fails to get beyond certain assumptions about the superiority and inevitability of market exchange and the price system as the only possible allocative mechanism. Utilizing an approach rooted in critical political economy helps correct for some serious ‘blind-spots’ that, at least in the case of intellectual property and other information technology issues, results in the assumption that the public goods nature of information is a “problem” that needs to be “cured. This “cure” tends to involve crafting policies that utilize technological measures to induce scarcity, promote rivalry in consumption, and create new exclusion and control mechanisms, all with resulting negative social effects. Under the predominant utilitarian approach much in favor with contemporary policy makers, these social costs are often justified based on the need to foster economic incentives. On the surface at least, it would seem that economic analysis plays an important role in the information policy process. But when one cuts below the surface, it appears that the policy process is not quite so driven by any real economic analysis as much as by the power of economic interests. (Elsewhere I have more fully argued that copyright policy developments can be located within a broader framework of commodification and the logic of capital, and that a critical theoretical framework rooted in political economy is needed.)

The copyright policy environment in the United States in the mid to late 1990’s provides good examples of how an unswerving faith in market exchanges combined with a ‘circle-the-wagons’ response to the challenges of new technologies, resulted in some very skewed policies. Skewed, that is, in the direction of insuring that market mechanisms could operate without the increasing pesky interference being caused by the public goods nature of information. During that period, there was a convergence of several policy initiatives, which taken together constituted an unparalleled proprietization, (or maximalist drift as it was often called) of intellectual goods and services. Several measures were passed into law, such as the strong anti-circumvention and digital rights management rules in the DMCA, the Sonny-Bono Term Extension Act, the No Electronic Theft Act, the passage of UCITA in Maryland and Virginia, and the general ratcheting-up of mandatory levels of IP protection through trade agreements. Other measures failed to secure passage, such as a continuous series of sui generis database protection bills and UCITA in all but two states. But throughout this entire process, the policy process was generally devoid of any serious understanding of the relationship between law, technology, the economy and society. Little effort was made to try to understand how the technological advances on the horizon would interact with the social, cultural, political and economic practices. What little of what even tried to pass for economic analysis tended to focus on alarmist accounts of the dollar losses to the information and entertainment industries on account of piracy; or dire warnings of the impending demise of the domestic database industry should the problems created by the Feist case not be “cured” with expansive database legislation. (I have written a general critique of the database right and about databases in general elsewhere).

In retrospect we can view the passage of the anti-circumvention rules of the DMCA as a high-water mark of a backward-looking maximalist agenda, or perhaps better stated as the low-water mark of progressive and future-oriented information policy making. One only need review the Electronic Frontier Foundations “Unintended Consequences: Seven Years Under the DMCA” to get a sense of how ill advised this particular legislation truly was. That it was accompanied by other similarly oriented measures, and then exported for international adoption through an expanding series of trade agreements (which I have addressed elsewhere) only exacerbated the problems. It didn’t take long for even some of the key policy makers to have second thoughts about what they had unleashed in the heady 90’s (view Bruce Lehman’s statements at a 2007 conference at McGill).

For its part, Canada has done well in avoiding the excesses of the DMCA, but the pressure is still on to adopt similar policies. Substantive economic analysis, based on an understanding of how people are using new technologies and how the old business models might not be the best way to foster innovation, induce creativity and enable sustainable levels of growth, will help ensure that the Canadian policy process doesn’t fall victim to the same traps that the US fell into over a decade ago.

Perhaps in retrospect it is all too easy to say that the failure of the policy process was due to a lack of careful economic analysis or a clear understanding of the nature of the technological changes then underway. It might be that the forces pushing for these changes had simply captured the policy process at the time and no amount of economic analysis, (critical or otherwise) and no amount of technological insight would have changed anything. Economic times were good, and new information and communications technologies promised an optimistic future of seemingly unlimited growth and plenty.

For better or worse, today we are living under very different circumstances. Some of the utopian glitter of the high-tech enthusiasts has worn off (well at least some of it) and we are giving some serious thought of possibility of ordering our economic system in different ways, at least insofar as immediate government policies are concerned.

So all in all, I think now is a particularly good time to be working on the development of a general theory of law and technology (or law, technology and society) which takes due account of a wide range of cultural, social, political and economic factors. If the forces of technology can be utilized to expand access to intellectual goods rather than to devise ever more insidious exclusion, metering and surveillance systems it will take some conscious effort and some affirmative information policies. I thank the organizers of this discussion for moving this agenda forward, and I am grateful to have had the chance to participate.

Tuesday, March 3, 2009

Bringing in some economic analysis

In my posts I will address issues pertaining to the economics of information and information technologies. In particular, I will argue that a theory of law and technology needs to account for economic phenomena, and that it needs to do so in a conscious, purposeful and critical manner.

In an earlier posting (February 5th), Peter Yu discusses the general theory of law of technology, which he arfues should be about a triangular relationship between law, technology and society. I agree with this general formulation and the need to view these three components as being interdependent, avoiding either a technological determinist account or the formalist positivist view of law as an internal system unto itself. But I worry that not enough attention is given to economic issues, which I believe a crucial component of a full understanding of the relations between law, technology and various social phenomena broadly construed. At the outset, I should disclaim any interest in adopting a law and economics approach to the problem; it is not my intention to substitute economics for technology as a key determinate. I just want to make sure that choices concerning questions of economic policy, indeed some very basic threshold questions about economic policy, are not lost under the broader guise of “law”, “technology” or “society”.

In his February 2nd posting, Art Cockfield reminds us of two differing views on the relationship between human autonomy and technology, the instrumentalist and substantive schools of thought. He contrasts these two competing theories and points to how they may influence legal analysis. I will do something similar with respect to what I see as two competing theories of economic analysis, which for simplicity I will refer to as mainstream positive economics and critical political economy. While Art goes on to propose a synthesis of the two philosophical perspectives he identifies, I will argue that these two ways of thinking about economics are less susceptible to reconciliation and have inherent tensions that are often played out in the information policy making process that results in intellectual property and related laws.

My goal in these posts is not necessarily to convince anyone that one of these two disparate world-views is better than the other, or some potential mixture; but rather of the need to take economic issues into account when thinking about the parameters of a theory of law and technology. Having said that, I should indicate that in my work I rely heavily on an economic approach grounded in radical political economy, and I use this to approach inform my critique of expansionist intellectual property policies and other policies that tend to reduce intellectual goods (data, information, knowledge) and intellectual and communication technologies to commodities without regard to their public goods qualities.

In the remainder of this first post, I will briefly review the contours of these two competing theories and their underlying assumptions. In the next post, I will argue that any theory of law and technology, or law, technology and society needs to consciously take account of economic issues in a purposeful manner that explicitly recognizes the contention between these schools of thought.

Mainstream positive economics starts with the assumption that the free market system, as it operates through a price mechanism is the ideal allocation mechanism to govern the production, dissemination and use of intellectual goods and information technologies. It is thought that such goods will be under-produced without a guarantee of sufficient market-based financial incentives to creators, inventors, owners and distributors. A related assumption then is that an expansion of property rights are necessary in order to protect these market-based interests from being under-produced or undermined by acts of appropriation, especially in an era of easy reproduction. In contrast, one might reject this market based system of allocation in favor of an approach rooted in the tradition of critical political economy.

With political economy, which has historically stood at the intersection of politics, social theory and economics, a society’s prevailing reward structure and economic institutions and models are not taken as a pre-determined given. Rather they are constantly subjected to evaluation and re-evaluation especially under conditions of change. Taking a broad historical approach, it becomes evident that societies can, and often do, change their economic institutions and the manner in which they operate in response to new arguments. With respect to a theory of law and technology, it is also evident that economic analysis has played an important role in informing copyright, patent and related policies and these utilitarian theories are often rooted in the search for the optimal trade-off, or balancing, of the various interests of creators, rights holders and users. Central to this utility-maximizing is the presumed need to provide direct economic incentives to create intellectual goods, be they works of expression or works of invention.

One recurring criticism of the efficiency-centric, cost-benefit analysis mode of thinking is that certain gains and losses are not as susceptible to precise quantitative measurement as are others. So in the area of intellectual property, it is often argued that losses to the general public interest resulting from over-protection are not as easy to identify and measure as those concrete financial benefits accruing to the rights holders, and that this disparity creates a built-in bias in the policy process in favor of over-protection of intellectual assets. It can also act to marginalize other policy options which are not rooted in proprietary mechanisms.

Proponents of an approach rooted in critical political economy would argue that a deeper analysis is needed than what can be provided by models tied to market efficiency assumptions. Within the critical perspective, the “public goods” quality of information (it tends to be non-rival in consumption and not inherently subject to an exclusion mechanism) is seen as a good thing that presents society with many potential social benefits. But within the logic of the market, the public goods nature of information is view as a market failure “problem” that needs to be “cured” so that the price mechanism can properly operate. These cures take on various forms designed to induce scarcity, promote rivalry in consumption, or employ new exclusion mechanisms.

Getting back to the triangular relationship between law, technology and society, I’m not sure where to place the consideration of economic issues. Perhaps it is a subset of the “society” prong, or perhaps it is embedded in the “technology” or perhaps even with the “law.” I am clear though, that economic issues need to be considered somewhere in this mix, and such difficult economic issues need to be considered in an explicit manner. Failing such explicit treatment, the underlying assumptions of one of the models continues to go unchallenged, and its values and suppositions are absorbed into the policy process even if only implicitly.

In my next post, I’ll provide some examples and attempt to flush these arguments out in a bit more detail.

Monday, March 2, 2009

Introducing Samuel Trosow

Our last blogger on the topic of 'human autonomy, law and technology,' is Sam Trosow from the University of Western Ontario where he holds a cross-appointment with the Faculty of Law and the Faculty of Information and Media Studies.

Several years ago, Sam and I were on a panel that looked into law and technology theories, and his paper discussed how social theory could help legal thinkers understand the ways that technology change can subvert legal interests: see Samuel Trosow, "The Ownership and Commodification of Legal Knowledge: Using Social Theory of the Information Age as a Tool for Policy Analysis," Manitoba Law Journal 30(3): 417 (2004).

He has more recently published a book (with Laura Murray) on Canadian copyright reform.

Looking forward to what should be a couple of fairly provocative posts!