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).
Tuesday, March 10, 2009
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.
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.
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!
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!
Saturday, February 28, 2009
Control yourself, or at least your “core” self
One of the dominant definitions of privacy—particularly in the policy world but by no means confined there—is that of control over personal information. Certainly it influences data protection law in Canada, which requires organizations to obtain the consent of individuals for the collection, use and disclosure of personal information. One of the great advantages of such a model is that it does not limit protection to a particular sub-class of personal information such as information that is sensitive and intimate—“personal information” is simply information about an identifiable individual. This makes such models potentially more responsive to information practices that rely less on intruding into a sensitive sphere and more upon compiling pieces of information that, on their own, are not sensitive and may even be “public.” However, the breadth of a control-model is also its Achilles heel: to create a workable scheme one needs many exceptions and without careful thought these may be clumsily introduced. Canada’s experience with these regimes bears this out, and I have documented these problems elsewhere.
For the purposes of this blog, I want to focus here on a particular strategy for limiting the breadth of a control-over-personal-information model of privacy that is popular in Canadian jurisprudence: the idea of a "biographical core." Canadian Supreme Court constitutional privacy jurisprudence (arising out of the search and seizure context) has often endorsed ideas like control over personal information in relation to informational privacy. However, most of the real work is in fact being done by a much narrower idea. Informational privacy is said to protect one’s “biographical core of personal information,” which has been defined as including “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant) This narrowing of personal information to one’s biographical core is also present in data protection regimes, although less explicitly, because of the need to provide some personal information with stronger protection than other information (for example, this sometimes plays out in debates regarding the type of consent required or in how a balancing test is implemented).
I have pointed out this trend at a number of practice-oriented forums and usually get one of two responses. The first, from decision makers, is that of course they have to operate with some idea of a “biographical core” because some information is more sensitive than others and this is the only way to properly engage in a privacy risk assessment. The second, from various privacy advocates, is shock and dismay that the privacy community is reverting to what looks like an idea of sensitive and intimate information that seems wholly unsuited to meet current privacy challenges.
I, however, think that privacy-as-protection-of-one’s-biographical-core has far more in common with privacy-as-control-over-personal-information than simply its pragmatic use to narrow an overly-broad definition. They both draw upon a similar idea of the self.
This becomes readily apparent if we consider the work of Alan Westin in his influential book, Privacy and Freedom. Westin is often cited for this classic privacy-as-control statement:
Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. (p.7)
But Westin also goes on to write:
privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve. … [E]ach individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others (p. 7)
…
The most serious threat to the individual’s autonomy is the possibility that someone may penetrate the inner zone and learn his ultimate secrets, either by physical or psychological means. (p.33)
From this we can see that Westin’s claims regarding control over information are in service of an idea of privacy as social withdrawal—an idea that lines up with more traditional privacy ideas such as the protection of secret, sensitive and intimate information. Moreover, this withdrawal is ultimately in service of the protection of an “inner zone” that parallels the Supreme Court of Canada’s biographical core. Social interaction is something that is balanced against this need for withdrawal, something that is in constant tension with it—which echoes the difficulty that many judges have in understanding why someone might have a privacy interest in information that has been voluntarily disclosed to others, or in regards to something that has in some context been made “public.”
There are other alternatives for thinking about the self and privacy. Suppose instead that we took up the challenge posed by some of the first generation philosophers of technology that we need to rethink the modern subject if we are to properly respond to the challenges of technology. Suppose, for example, that instead of the idea of an individual with an inner core transparent to itself upon solitary introspection, we posited a self that is in fact formed through social interaction. The point of privacy would not be to protect the conditions of social withdrawal in order to maintain the integrity of such a self—it would be to protect the conditions of social interaction in order to provide the basis for identity formation in the first place.
I am currently working on outlining an account of privacy such as this. Inspired explicitly by Goffman, but influenced by many others, I want to claim that privacy should be understood in terms of protecting our capacity for self-presentation. This “self” that is presented may or may not be different in relation to different “others,” may or may not be constituted through these relationships, and may or may not vary over time and across contexts in contradictory ways—in other words, it stays far away from positing anything like an “inner zone” or “biographical core.” What becomes important is not the protection of different layers of an already-constituted self but rather an individual’s ability to know the others to whom she presents herself—and even, in some case, to be able to choose these others. For example, if I take a photo of you in a public place and publish it in a magazine I have dramatically changed the nature of the others to whom you were presenting yourself—the “audience” shifts from the other people sharing this public space to the other people reading the magazine. This shift, I want to argue, undermines one’s capacity for self-presentation and therefore raises at least a prima facie privacy claim—even though the photo was taken in “public” and even though it reveals nothing embarrassing or sensitive (I have written elsewhere about the Aubry case, which has these facts).
There is, of course, much more to say and this is what my current work is focusing on. My point in these two blog posts has been to try to show that the first generation of philosophers of technology raise an intriguing challenge to legal theorists regarding the need to examine the view of the self that we adopt in thinking about technological questions. I think that privacy law and theory would do well to rise to the challenge.
For the purposes of this blog, I want to focus here on a particular strategy for limiting the breadth of a control-over-personal-information model of privacy that is popular in Canadian jurisprudence: the idea of a "biographical core." Canadian Supreme Court constitutional privacy jurisprudence (arising out of the search and seizure context) has often endorsed ideas like control over personal information in relation to informational privacy. However, most of the real work is in fact being done by a much narrower idea. Informational privacy is said to protect one’s “biographical core of personal information,” which has been defined as including “information which tends to reveal intimate details of the lifestyle and personal choices of the individual.” (Plant) This narrowing of personal information to one’s biographical core is also present in data protection regimes, although less explicitly, because of the need to provide some personal information with stronger protection than other information (for example, this sometimes plays out in debates regarding the type of consent required or in how a balancing test is implemented).
I have pointed out this trend at a number of practice-oriented forums and usually get one of two responses. The first, from decision makers, is that of course they have to operate with some idea of a “biographical core” because some information is more sensitive than others and this is the only way to properly engage in a privacy risk assessment. The second, from various privacy advocates, is shock and dismay that the privacy community is reverting to what looks like an idea of sensitive and intimate information that seems wholly unsuited to meet current privacy challenges.
I, however, think that privacy-as-protection-of-one’s-biographical-core has far more in common with privacy-as-control-over-personal-information than simply its pragmatic use to narrow an overly-broad definition. They both draw upon a similar idea of the self.
This becomes readily apparent if we consider the work of Alan Westin in his influential book, Privacy and Freedom. Westin is often cited for this classic privacy-as-control statement:
Privacy is the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others. (p.7)
But Westin also goes on to write:
privacy is the voluntary and temporary withdrawal of a person from the general society through physical or psychological means, either in a state of solitude or small-group intimacy or, when among larger groups, in a condition of anonymity or reserve. … [E]ach individual is continually engaged in a personal adjustment process in which he balances the desire for privacy with the desire for disclosure and communication of himself to others (p. 7)
…
The most serious threat to the individual’s autonomy is the possibility that someone may penetrate the inner zone and learn his ultimate secrets, either by physical or psychological means. (p.33)
From this we can see that Westin’s claims regarding control over information are in service of an idea of privacy as social withdrawal—an idea that lines up with more traditional privacy ideas such as the protection of secret, sensitive and intimate information. Moreover, this withdrawal is ultimately in service of the protection of an “inner zone” that parallels the Supreme Court of Canada’s biographical core. Social interaction is something that is balanced against this need for withdrawal, something that is in constant tension with it—which echoes the difficulty that many judges have in understanding why someone might have a privacy interest in information that has been voluntarily disclosed to others, or in regards to something that has in some context been made “public.”
There are other alternatives for thinking about the self and privacy. Suppose instead that we took up the challenge posed by some of the first generation philosophers of technology that we need to rethink the modern subject if we are to properly respond to the challenges of technology. Suppose, for example, that instead of the idea of an individual with an inner core transparent to itself upon solitary introspection, we posited a self that is in fact formed through social interaction. The point of privacy would not be to protect the conditions of social withdrawal in order to maintain the integrity of such a self—it would be to protect the conditions of social interaction in order to provide the basis for identity formation in the first place.
I am currently working on outlining an account of privacy such as this. Inspired explicitly by Goffman, but influenced by many others, I want to claim that privacy should be understood in terms of protecting our capacity for self-presentation. This “self” that is presented may or may not be different in relation to different “others,” may or may not be constituted through these relationships, and may or may not vary over time and across contexts in contradictory ways—in other words, it stays far away from positing anything like an “inner zone” or “biographical core.” What becomes important is not the protection of different layers of an already-constituted self but rather an individual’s ability to know the others to whom she presents herself—and even, in some case, to be able to choose these others. For example, if I take a photo of you in a public place and publish it in a magazine I have dramatically changed the nature of the others to whom you were presenting yourself—the “audience” shifts from the other people sharing this public space to the other people reading the magazine. This shift, I want to argue, undermines one’s capacity for self-presentation and therefore raises at least a prima facie privacy claim—even though the photo was taken in “public” and even though it reveals nothing embarrassing or sensitive (I have written elsewhere about the Aubry case, which has these facts).
There is, of course, much more to say and this is what my current work is focusing on. My point in these two blog posts has been to try to show that the first generation of philosophers of technology raise an intriguing challenge to legal theorists regarding the need to examine the view of the self that we adopt in thinking about technological questions. I think that privacy law and theory would do well to rise to the challenge.
Thursday, February 26, 2009
Are We All Control Freaks Now?
Earlier this month, Facebook quietly changed its terms of service and waded into what I will call the “control wars” over personal information. Facebook’s changes would enhance its control over users posted information, including material that had been deleted. The response was swift and angry. A Facebook Group, “People Against the New Terms of Service,” attracted over 130,000 members to pressure Facebook to revert to its old terms of use. The Electronic Privacy Information Centre (EPIC) threatened to file a complaint with the Federal Trade Commission. Facebook backed down.
This incident is interesting for many reasons. For one, it illustrates public anxieties regarding personal information. Tracked by public surveillance cameras, profiled by marketers, tagged by Facebook friends—increasingly we fear that information and communications technology has placed our personal information beyond our control. And, given that one of the most popular definitions of privacy is “control over personal information”, any loss of control is viewed as a problematic loss of privacy.
The Facebook incident also highlights the accepted solutions to this problem. The way to halt the rapid erosion of privacy is to provide individuals with more control over their personal information. This has both a technological and a legal aspect. The technological aspect can be seen by the use of technology itself (a Facebook group) to mobilize individuals into an effective pressure group. The legal aspect can be seen through the threat of legal action. In fact, EPIC claims that this incident is evidence of the need for more comprehensive privacy laws in the United States. Canada has such legislation, including our federal Personal Information Protection and Electronic Documents Act (PIPEDA), which aims to provide individuals with greater control over the collection, use and disclosure of their personal information. Even before this recent controversy, the Canadian Internet and Public Policy Clinic (CIPPIC) filed a complaint with the federal Privacy Commissioner alleging that Facebook was in violation of its obligations under PIPEDA.
I am a supporter of comprehensive privacy legislation and, as a Facebook user, happy that Facebook reversed its decision. Nonetheless I think we should be concerned about the prevalence of “control” as the paradigm for both the problem of, and solution to, information and communication technology.
What interests me here is the striking parallels between contemporary privacy angst and technological fears from an earlier era. Like the “information age,” the modern industrial age engendered dystopian visions of out-of-control technology, technology that did not simply herald a new age of freedom but rather brought with it new types of threats to human autonomy, health, communities and the environment. This spawned a great deal of academic commentary across many disciplines; I want to focus here specifically on the philosophy of technology and what it can both contribute to, and learn from, the control wars.
Hans Achterhuis usefully distinguishes first and second generation philosophers of technology. Perhaps the most influential philosopher of the first generation is Martin Heidegger. According to Heidegger, the instrumental conception of technology—that technology is simply a means that we create and use to further our chosen ends— blinds us to the true essence of technology. As he famously—and rather cryptically—argued in The Question Concerning Technology, “the essence of technology is by no means anything technological.” Instead, the essence of technology is more akin to what we might now call a cultural paradigm that conditions us to view the world as resources at our disposal. Moreover, for him the essence of technology is intrinsically tied to the project of modernity itself. In this way, his work fits within a general category of primarily European thinkers who made technology an explicit theme in their reflections and who argued—although each in quite different terms—that the significance of modern technology does not lie in specific features of its machinery but rather in a kind of rationality and cultural milieu intimately linked with the project of modernity and the Enlightenment values that animate it but simultaneously threatening to undermine human freedom. In addition to Heidegger, Jacques Ellul, Gabriel Marcel, and the Frankfurt School were all influential in this regard.
Second-generation philosophers of technology share a general rejection of instrumental definitions of technology but have largely tried to distance themselves from the strong dystopian flavour of these earlier more radical techniques. According to these second-generation thinkers, these earlier critiques fail because they are essentialist in talking about “Technology” rather than “technologies,” and determinist in not seeing the myriad ways in which human contexts and values shape and constrain the uses of technology. In a world where modern technology is ubiquitous and most often welcomed, they argue, we need a more nuanced view of technology, one that has a place to laud the victories of technology and a program for technological design that enhances democratic and ethical values. Indeed, as Hans Achterhuis has argued, second-generation philosophers of technology have largely taken an “empirical turn.”
This second-generation empirical turn can enrich legal discussions of technology by opening legal discussion to the insights of theorists from a variety of disciplines who have indicated that technology is in fact not neutral, that it often embodies important social and political values and therefore can have unintended and undesirable effects beyond simply physical consequences. It can also point to the ways in which we have the resources to think about, and build, technologies in a number of different ways and give us a richer basis upon which to think about law’s role in this.
However, in distancing itself from these various elements of earlier critiques, second generation philosophers of technology have largely lost sight of the normative elements of earlier critiques. The danger is that in showing how technologies are shaped by a complex of social forces, as well as how they open up a plurality of options, these theories fall into a kind of descriptive obscurity. Indeed, Langdon Winner accuses some expressions of this “empirical turn” of ignoring—even disdaining—any normative inquiry into technology in favour of highlighting the interpretive flexibility of any particular technology. As Winner argues, the important question is not how technology is constructed but which norms we should invoke to evaluate technologies, their design, implementation, and effects.
This is where legal scholars need to intervene.
What some of the legal debates regarding technology highlight is that it is not clear that the traditional normative strategies we might employ to evaluate technologies are adequate. And many of these normative strategies center on a particular idea of the self. For example, in an earlier posting, Frank Pasquale indicated that the question of the acceptance of self-enhancing technologies is not being driven by the technology itself but rather by a conception of the self that should be questioned. Kieran Tranter wrote of the need for alternative stories of self-creation.
These observations—with which I agree—suggest that we should rethink the empirical turn. What the first generation of philosophers of technology understood was that at the root of their questioning of technology lay the need to question the modern self itself. At the end of the day, this was Heidegger’s message regarding technology: the instrumental definition of technology blinds us to the real essence of technology but the supreme danger of this is that we are thereby also blinded to the true nature of what it means to be a human being. Discussions of controlling technology – through law or other means—misses this entirely and in fact risks perpetuating a problematic view of the self.
In my next post, I will try to show how this insight can be helpful in understanding the limits of a privacy paradigm centered on control of personal information even if we don’t return to the radical excesses of first generation philosophy of technology.
But in closing let me respond to one possible objection to my claim that law is an important site for normative engagement with technology and, in particular, claims of control. One might ask whether law itself is a technology and therefore not something that can be easily and straightforwardly enlisted to judge other technologies. Ellul, who has already been mentioned in a number of previous posts, himself wrote of “judicial technique,” placing it in the realm of calculative rationality that characterizes other techniques. Nonetheless, because law is a site of justice it is also in a kind of privileged position in relation to technology as that which can never fully become technique. He argues:
Judicial technique is in every way much less self-confident than the other techniques, because it is impossible to transform the notion of justice into technical elements. Despite what philosophers may say, justice is not a thing which can be grasped or fixed. If one pursues genuine justice (and not some automatism or egalitarianism), one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist. Moreover, justice is not in the service of the state; it even claims the right to judge the state. Law created as a function of justice eludes the state, which can neither create nor modify it. The state of course sanctions this situation only to the degree that it has little power or has not yet become fully self-conscious; or to the degree that its jurists are not exclusively technical rationalists and subordinated to efficient results. Under these conditions, technique assumes the role of a handmaiden modestly resigned to the fact that she does not automatically get what she desires. (The Technological Society, p. 292)
One might say that justice eludes control and we would do well to attend to this and its significance.
This incident is interesting for many reasons. For one, it illustrates public anxieties regarding personal information. Tracked by public surveillance cameras, profiled by marketers, tagged by Facebook friends—increasingly we fear that information and communications technology has placed our personal information beyond our control. And, given that one of the most popular definitions of privacy is “control over personal information”, any loss of control is viewed as a problematic loss of privacy.
The Facebook incident also highlights the accepted solutions to this problem. The way to halt the rapid erosion of privacy is to provide individuals with more control over their personal information. This has both a technological and a legal aspect. The technological aspect can be seen by the use of technology itself (a Facebook group) to mobilize individuals into an effective pressure group. The legal aspect can be seen through the threat of legal action. In fact, EPIC claims that this incident is evidence of the need for more comprehensive privacy laws in the United States. Canada has such legislation, including our federal Personal Information Protection and Electronic Documents Act (PIPEDA), which aims to provide individuals with greater control over the collection, use and disclosure of their personal information. Even before this recent controversy, the Canadian Internet and Public Policy Clinic (CIPPIC) filed a complaint with the federal Privacy Commissioner alleging that Facebook was in violation of its obligations under PIPEDA.
I am a supporter of comprehensive privacy legislation and, as a Facebook user, happy that Facebook reversed its decision. Nonetheless I think we should be concerned about the prevalence of “control” as the paradigm for both the problem of, and solution to, information and communication technology.
What interests me here is the striking parallels between contemporary privacy angst and technological fears from an earlier era. Like the “information age,” the modern industrial age engendered dystopian visions of out-of-control technology, technology that did not simply herald a new age of freedom but rather brought with it new types of threats to human autonomy, health, communities and the environment. This spawned a great deal of academic commentary across many disciplines; I want to focus here specifically on the philosophy of technology and what it can both contribute to, and learn from, the control wars.
Hans Achterhuis usefully distinguishes first and second generation philosophers of technology. Perhaps the most influential philosopher of the first generation is Martin Heidegger. According to Heidegger, the instrumental conception of technology—that technology is simply a means that we create and use to further our chosen ends— blinds us to the true essence of technology. As he famously—and rather cryptically—argued in The Question Concerning Technology, “the essence of technology is by no means anything technological.” Instead, the essence of technology is more akin to what we might now call a cultural paradigm that conditions us to view the world as resources at our disposal. Moreover, for him the essence of technology is intrinsically tied to the project of modernity itself. In this way, his work fits within a general category of primarily European thinkers who made technology an explicit theme in their reflections and who argued—although each in quite different terms—that the significance of modern technology does not lie in specific features of its machinery but rather in a kind of rationality and cultural milieu intimately linked with the project of modernity and the Enlightenment values that animate it but simultaneously threatening to undermine human freedom. In addition to Heidegger, Jacques Ellul, Gabriel Marcel, and the Frankfurt School were all influential in this regard.
Second-generation philosophers of technology share a general rejection of instrumental definitions of technology but have largely tried to distance themselves from the strong dystopian flavour of these earlier more radical techniques. According to these second-generation thinkers, these earlier critiques fail because they are essentialist in talking about “Technology” rather than “technologies,” and determinist in not seeing the myriad ways in which human contexts and values shape and constrain the uses of technology. In a world where modern technology is ubiquitous and most often welcomed, they argue, we need a more nuanced view of technology, one that has a place to laud the victories of technology and a program for technological design that enhances democratic and ethical values. Indeed, as Hans Achterhuis has argued, second-generation philosophers of technology have largely taken an “empirical turn.”
This second-generation empirical turn can enrich legal discussions of technology by opening legal discussion to the insights of theorists from a variety of disciplines who have indicated that technology is in fact not neutral, that it often embodies important social and political values and therefore can have unintended and undesirable effects beyond simply physical consequences. It can also point to the ways in which we have the resources to think about, and build, technologies in a number of different ways and give us a richer basis upon which to think about law’s role in this.
However, in distancing itself from these various elements of earlier critiques, second generation philosophers of technology have largely lost sight of the normative elements of earlier critiques. The danger is that in showing how technologies are shaped by a complex of social forces, as well as how they open up a plurality of options, these theories fall into a kind of descriptive obscurity. Indeed, Langdon Winner accuses some expressions of this “empirical turn” of ignoring—even disdaining—any normative inquiry into technology in favour of highlighting the interpretive flexibility of any particular technology. As Winner argues, the important question is not how technology is constructed but which norms we should invoke to evaluate technologies, their design, implementation, and effects.
This is where legal scholars need to intervene.
What some of the legal debates regarding technology highlight is that it is not clear that the traditional normative strategies we might employ to evaluate technologies are adequate. And many of these normative strategies center on a particular idea of the self. For example, in an earlier posting, Frank Pasquale indicated that the question of the acceptance of self-enhancing technologies is not being driven by the technology itself but rather by a conception of the self that should be questioned. Kieran Tranter wrote of the need for alternative stories of self-creation.
These observations—with which I agree—suggest that we should rethink the empirical turn. What the first generation of philosophers of technology understood was that at the root of their questioning of technology lay the need to question the modern self itself. At the end of the day, this was Heidegger’s message regarding technology: the instrumental definition of technology blinds us to the real essence of technology but the supreme danger of this is that we are thereby also blinded to the true nature of what it means to be a human being. Discussions of controlling technology – through law or other means—misses this entirely and in fact risks perpetuating a problematic view of the self.
In my next post, I will try to show how this insight can be helpful in understanding the limits of a privacy paradigm centered on control of personal information even if we don’t return to the radical excesses of first generation philosophy of technology.
But in closing let me respond to one possible objection to my claim that law is an important site for normative engagement with technology and, in particular, claims of control. One might ask whether law itself is a technology and therefore not something that can be easily and straightforwardly enlisted to judge other technologies. Ellul, who has already been mentioned in a number of previous posts, himself wrote of “judicial technique,” placing it in the realm of calculative rationality that characterizes other techniques. Nonetheless, because law is a site of justice it is also in a kind of privileged position in relation to technology as that which can never fully become technique. He argues:
Judicial technique is in every way much less self-confident than the other techniques, because it is impossible to transform the notion of justice into technical elements. Despite what philosophers may say, justice is not a thing which can be grasped or fixed. If one pursues genuine justice (and not some automatism or egalitarianism), one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist. Moreover, justice is not in the service of the state; it even claims the right to judge the state. Law created as a function of justice eludes the state, which can neither create nor modify it. The state of course sanctions this situation only to the degree that it has little power or has not yet become fully self-conscious; or to the degree that its jurists are not exclusively technical rationalists and subordinated to efficient results. Under these conditions, technique assumes the role of a handmaiden modestly resigned to the fact that she does not automatically get what she desires. (The Technological Society, p. 292)
One might say that justice eludes control and we would do well to attend to this and its significance.
Wednesday, February 25, 2009
Introducing Lisa Austin
Thanks to Lyria and all of the previous bloggers for their many thought-provoking posts. We're now in the home stretch with two bloggers left to go.
Our next blogger, Lisa Austin from the University of Toronto, conducts research in areas that include privacy law and the ethical and social justice issues raised by emerging technologies. A recent work focuses on the challenges to privacy rights and interests presented by state information-sharing practices. Lisa is currently working on a research project involving privacy and identity.
Our next blogger, Lisa Austin from the University of Toronto, conducts research in areas that include privacy law and the ethical and social justice issues raised by emerging technologies. A recent work focuses on the challenges to privacy rights and interests presented by state information-sharing practices. Lisa is currently working on a research project involving privacy and identity.
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