Law and the Political Economy of Technology

Amy Kapczynski –

In April, Jack Balkin, Yochai Benkler and I convened a workshop on the law and political economy of technology at Yale Law School. Participants drafted thought papers, which we spent the better part of two days discussing.  In the coming weeks, many participants will post revised papers or reflections in a series of posts that will be featured on these pages and cross-posted at Balkinization. scalesanddata.jpg

In convening the conference, we aimed to bring a political economy lens to a domain of extraordinary importance to our lives today.  Robots, gig-economy platforms, surveillance capitalism, and global networks all have helped shape rising inequality and the increasing precarity of work.  Bots and social media generate new challenges for democratic societies purportedly based on fair elections and a reasoned public sphere.  New surveillance technologies are being embraced by the criminal justice system, the military, and intelligence communities, with little attention to the racialized implications of these new extensions of the carceral state.

In analyzing problems such as these, we began from a shared understanding that technology doesn’t operate outside of a social or legal context.  Technology has a political economy, deeply shaped by law.  Politics orders technology through many different decisions made in code and in law.  These include decisions about the scope and ownership of intellectual property, about the permissible degree of concentration in industries, and about who will be allowed to access the outputs and inputs of technology. Law, together with social norms, shapes the diffusion and adoption of technology—for example, through labor and employment regulations, tax and transfer policies, and securities laws. How does law interact with technology to increase control by some and decrease the freedom of others? How does it in so doing exacerbate inequality?  And how might law make social practices mediated by technology more democratic and egalitarian? Over the course of this series, we will investigate how politics and law interact with technology to influence political and economic organization, mobilization and political communication, and patterns of inequality and economic insecurity.

Political economy approaches bring to the center set of questions about the relationship between market structures, power, and politics.  They recognize markets as constructed through political choices and as having political implications, in particular via their influence on distribution of wealth and social status.  They ask us to think not about what is efficient, but about what kind of economic order might be necessary to make our society more democratic and egalitarian.

In constructing the prompt for the workshop, we thought that the following questions deserved attention. I’m including them here as an example of the kinds of questions that scholars interested in political economy might ask about technology, and in the hopes that they may spark new lines of inquiry beyond our small group.

  1. Technology helps mediate the relationship between the economy and political power.  What are important ways that technology does this in the United States in the current moment?  What role does technology (or how it is regulated or described) play in creating, exacerbating, or obscuring aspects of the relationship between the economy and political power?
  2. What would more democratic governance of technology look like and require today?  What political and legal responses to the growing functional sovereignty of platforms are necessary?  How can law and legal scholarship respond to the power of platforms and social media companies have over the contemporary public sphere – power that is both obvious and obscure?
  3. What case studies offer insight into the ways in which law, norms, and technology interact to shape economic and political power in a given domain, such as healthcare, consumer markets, employment, housing, or finance?
  4. Does a political economy lens help illuminate differences in how contemporary technologies influence politics and inequality, as compared to how older technologies did so?  For example: much has been written about the differences between print and online media, and between Uber and the taxi industry.  A political economy approach asks us to think about the role of ownership and incentives (e.g. “clicks” as revenue model, as compared to print advertising; revenue models of “sharing platforms” like Uber vs. the taxi industry), economic power (e.g. network effects, vertical and horizontal integration), feedback effects between political and economic power, and the legal regulation of the private market (differences in IP and “real property” or how copyright affects online media vs. the traditional news media).  Does thinking through these lenses – and the role of law in constructing each – help us better understand, or intervene in, technology today?
  5. A political economy approach also asks us to consider the forms of power current political and economic arrangements allocate to different parties.  How do today’s approaches to the regulation of technology produce certain patterns of power and powerlessness?  How do today’s approaches to economic regulation produce patterns of technological use that reinforce these patterns? Are there ways to use law to democratize the technology sector in ways that will build power among those who have the least?   What might such interventions look like? For example, should we elevate antitrust or labor law reforms over more traditional “command and control” regulatory approaches?
  6. Race and gender also influence, and are influenced by, the political economy of technology.  What are important ways that race and gender matter to technology?  How are racialized and gendered hierarchies shaped by technology?
    1. Much has been written about algorithmic discrimination.  Are there discriminatory implications of technology that have received less attention?  What does antidiscrimination law need to tackle to address discrimination in the contemporary technological age?
    2. How does the changing nature of the labor market (e.g. the gig economy) draw on, and / or reinforce gendered and racialized divisions and hierarchies?
    3. How does technology change the nature and power of the carceral state?  Does it also create new potential to make that state more democratic – and do matters of ownership and control over technology matter to such change?
  7. Is intellectual property receding as a lynchpin of economic order and power?  (Google and Facebook derive important power from IP in their algorithms and trademarks, of course, but going forward their most important power may be over platforms and data, neither of which can be “owned” in classic intellectual property terms.) If so, why, and what is replacing it?  Power in the data layer?  Ownership of platforms?  Physical more than legal exclusion? Is the opposition between commons and property central to the battles over IP still a productive framework for thinking about the institutional foundations of economic power?
  8. Are present successors to commons-based and cooperative approaches developed in the first decade of the 21st century, such as platform or open cooperatives, plausible solutions to the imbalances of economic power in the emerging technological context?
  9. How is the language of “openness” helpful – or not – in attempts to democratize technology today?  What lessons can we learn about the challenges on the path to democratizing technology from the cooptation of “open” and “sharing economy” rhetoric to legitimate extractive practices?
  10. How does the ownership and structure of the technology sector generally, and social media more specifically: (i) shape American politics, (ii) influence what questions (don’t) receive public or governmental attention, and/or (iii) create feedback effects so that owners become more powerful and influential over time? How is law embedded in these ownership structures, and how can we address them through law?  Is there an “open data” equivalent to open access policies used to regulate the first broadband transition in telecommunications throughout most of the world (though not the U.S.) that could offer more competition in services on shared platform facilities?
  11. How does law and the current distribution of political power shape the technologies we have?  For example, does the nature of VC financing influence the design of technology?  Do differences in labor law in the US and Germany influence not just the adoption but also the design of robots in different places?  What would technology that was created by a more egalitarian political economy look like?  (For example, would we produce more preventative medicines or medicines for the poor?  More advances in public transportation than in self-driving cars?)

 

We’re pleased to be able to provide a glimpse into what was a spectacularly productive two days with the series of posts to come.  To give you a sense of the nature of our conversation, and some of what will follow, we’ve appended our agenda below.

 

Law and the Political Economy of Technology

Yale Law School, New Haven, CT

 

Friday, April 6, 2018

 

Session 1 – Defining the Political Economy Problem

  • Yochai Benkler: “Network Pragmatism: Towards an Open Social Economy”
  • Julie Cohen: “Technology, Political Economy, and the Role(s) of Law”
  • Daniel Markovits, : “The Meritocracy Trap”
  • Moderator: Amy Kapczynski

 

Session 2 – Labor, Race, and Technology

  • Veena Dubal: “Rule-making as State Violence: Understanding the Legal Transition to an Uber Economy from the Taxi Driver’s’ Seat”
  • Brishen Rogers: “Democratization as a Policy Response to Workplace Technological Change”
  • Dorian Warren: Commentary
  • Moderator: Yochai Benkler

 

Saturday, April 7, 2018

 

Session 3 – Defining the Political Economy Problem II

  • Amy Kapczynski: “Political Economy and Technological Power: The Role of ‘Riparian’ Data  Rights, Trade Secrets, and Contracts”
  • Frank Pasquale: “Questioning Computationalist Projects in Contemporary Law & Economics”
  • Moderator: Rebecca Crootof

 

Session 4 – Case Studies

  • Rebecca Crootof: “Torts and New Technologies: New Relationships, New Harms, New Duties”
  • Elizabeth Joh: “Police Surveillance Machines: A Short History”
  • Talha Syed: “Reorienting Technology Policy: From Regulating to Embedding Innovation”
  • Moderator: Jack Balkin

 

Session 5 – Platform Power

  • Lina Khan: “Forms of Technological Power: Gatekeeping, Leveraging, and Information Exploitation”
  • Ganesh Sitaraman: “How to Regulate Tech Platforms”
  • Moderator: Amy Kapczynski

 

Session 6 – Regulating Platforms

  • Jack Balkin: “The First Amendment in the Second Gilded Age”
  • Sabeel Rahman: “Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?”
  • Moderator: Yochai Benkler

 

Session 7 – Concluding Discussion: Problems and Solutions Through a Political Economy Lens

  • Moderator: Amy Kapczynski

 

Amy Kapczynski (@akapczynski) is a Professor of Law at Yale Law School.