Scaling Trust and Other Fictions

NB: This post is part of the “Skepticism About Information Fiduciaries” symposium. Other contributions can be found here.

Julie E. Cohen – 

fbookThe Centenal Cycle, the Hugo-nominated trilogy by novelist Malka Older, describes a not-too-distant future in which the existing liberal world order has been replaced by a regime of mass-mediated micro-democracy. With some exceptions—a handful of so-called null states that opted out and a more intriguing smattering of territories that opted for self-rule without the mass mediation—nation-states and their subordinate governance units have been dissolved. The vast majority of people live in centenals—contiguous territories of no more than 100,000 citizens—administered by entities of various persuasions that compete for their affiliation. Governments range from powerful, globally distributed operations such as Liberty, Heritage, and PhilipMorris to the nerdy Policy1st to regional players like AfricaUnity and DarFur to small, quirky outfits like the generally libertarian and fun-loving Free2B.

The regime of micro-democracy relies on networked information and communication services provided by an entity called, simply, Information. When we encounter it, it has assumed the status of an independent, nongovernmental entity with an unambiguously public-regarding mandate to function as a neutral guarantor of information quality.

Of course, that is easier said than done. Governments, splinter groups, and null states have incentives to sow mis- and disinformation for their own purposes. Guaranteeing information quality requires both comprehensive surveillance and an impressive array of counter-espionage capabilities. There are intricate cat-and-mouse games between the watchers and those attempting to evade them. Technologically sophisticated separatists spoof surveillance cameras and disinformation-detection algorithms and devise means of lurking undetected within secure communications channels and data streams. Resistance and subversion also establish bases of operation within Information itself. The dream of a sustainable micro-democratic order mediated by a neutral corps of public-spirited technocrats ultimately proves untenable, and yet the dream is so compelling that as the narrative closes on the aftermath of a systemic breakdown, Older’s band of protagonists is hatching plans to rebuild infrastructures, redesign institutions, and try again.

What does any of this have to do with Khan and Pozen on Balkin? The monolithic, public-spirited Information, the multiple, capitalist information fiduciaries of the Balkin proposal (see here and here), and the regime of structural regulation of information intermediaries that Khan and Pozen appear to imagine would seem to have very little in common. But they are imagined responses to the same problem: that of governing data-driven algorithmic processes that operate in real time, immanently, automatically, and at scale. More specifically, they are visions that engage with the problems of speed, immanence, automaticity, and scale in radically different ways.

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Technology, Political Economy, and the Role(s) of Law

Julie E. Cohen –

Legal scholars who work on information policy tend to focus on questions about how existing doctrinal and regulatory frameworks should apply to information-era business models and online behavior, perhaps undergoing some changes in coverage or emphasis along the way. They have asked, in other words, how law should respond to the changes occurring all around it. For the most part, they have not asked the broader, reflexive questions about how core legal institutions are already evolving in response to the ongoing transformation in our political economy—questions about how disputes over scalesanddata.jpginformation are reshaping the enterprise of law at the institutional level. That is a mistake. Information-economy actors do not simply act in markets; they also mobilize legal tools and institutions to advance their various goals. Through that process, legal institutions gradually become reoptimized for the new roles they are called upon to play.

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