Data Nationalization in the Shadow of Social Credit Systems

Frank Pasquale –

The political economy of digitization is a fraught topic. Scholars and policymakers have disputed the relative merits of centralization and decentralization. Do we want to encourage massive firms to become even bigger, so they can accelerate AI via increasingly comprehensive data collection, analysis, and use? Or do we want to trust-bust the digital economy, encouraging competitors to develop algorithms that can “learn” more from less data? I recently wrote on this tension, exploring the pro’s and con’s of each approach.46038488 - law concept: circuit board with  scales icon, 3d render

However, there are some ways out of the dilemma. Imagine if we could require large firms to license data to potential competitors in both the public and private sectors. That may sound like a privacy nightmare. But anonymization could allay some of these concerns, as it has in the health care context. Moreover, the first areas opened up to such mandated sharing may not even be personal data. Sharing the world’s best mapping data beyond the Googleplex could unleash innovation in logistics, real estate, and transport. Some activists have pushed to characterize Google’s trove of digitized books as an essential facility, which it would be required to license at fair, reasonable, and non-discriminatory (FRAND) rates to other firms aspiring to categorize, sell, and learn from books. Fair use doctrine could provide another approach here, as Amanda Levendowski argues.

In a recent issue of Logic, Ben Tarnoff has gone beyond the essential facilities argument to make a case for nationalization. Tarnoff believes that nationalized data banks would allow companies (and nonprofits) to “continue to extract and refine data—under democratically determined rules—but with the crucial distinction that they are doing so on our behalf, and for our benefit.” He analogizes such data to natural resources, like minerals and oil. Just as the Norwegian sovereign wealth fund and Alaska Permanent Fund socialize the benefits of oil and gas, public ownership and provision of data could promote more equitable sharing of the plenitude that digitization ought to enable.

Many scholars have interrogated the data/oil comparison. They usually focus on the externalities of oil use, such as air and water pollution and climate change. There are also downsides to data’s concentration and subsequent dissemination. Democratic control will not guarantee privacy protections. Even when directly personally identifiable information is removed from databases, anonymization can sometimes be reversed. Both governments and corporations will be tempted to engage in “modulation”—what Cohen describes as a pervasive form of influence on the beliefs and behaviors of citizens. Such modulation is designed to “produce a particular kind of subject[:] tractable, predictable citizen-consumers whose preferred modes of self-determination play out along predictable and profit-generating trajectories.” Tarnoff acknowledges this dark possibility, and I’d like to dig a bit deeper to explore how it could be mitigated.

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Artificial Sovereigns: A Quasi-Constitutional Moment for Tech?

K. Sabeel Rahman –

Consider the following developments:

  • In recent weeks, the explosive revelations about Cambridge Analytica and its systemic data-mining of Facebook profiles has cast into relief the way in which our contemporary digitized public sphere is not a neutral system of communication but rather a privately built and operated system of mass surveillance and content manipulation.46038488 - law concept: circuit board with  scales icon, 3d render
  • Meanwhile, Alphabet has announced that its subsidiary, Sidewalk Labs, will take over management of a major redevelopment of part of Toronto’s waterfront, in an effort to build from the ground up a modern “smart city.”
  • These developments come amidst the longer-term development of new forms of technological transformations of our political economy, from the rise of Amazon to its position as the modern infrastructure for the retail economy, to the ways in which technology is transforming the nature of work and the social safety net.

There has been a growing sense of concern about the twin crises of twenty-first-century democracy on the one hand and of the growing problems of inequality and insecurity on the other. Technological change is at the heart of both of these transformations. Technological change alters the distribution and dynamics of political and economic power, creating new forms of “functional sovereignty”—state-like powers concentrated in entities and systems that are not subject to the institutional and moral checks and balances that we associate with the exercise of public power. Such arbitrary power represents a kind of quasi-sovereignty that, left unchecked, poses a threat of domination.

The rich scholarly debate on law and technology has surfaced a range of approaches for addressing some of these concerns, from legal standards for privacy and data use to antitrust and public utility regulation, and more. These proposals and interventions can be reframed as part of a broader challenge of defusing the threat of domination created by these technological systems. Regulating and responding to new technologies and modern forms of economic and political power thus represent a variation on familiar questions of public law and constitutional design: how to structure the exercise of potentially arbitrary, state-like power, rendering it contestable, and therefore legitimate.

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Police Surveillance Machines: A Short History

Elizabeth Joh –

46038488 - law concept: circuit board with  scales icon, 3d render

The year 2015 witnessed a dramatic rise in demands for police surveillance machines. After a number of widely shared incidents of police violence against often unarmed civilians, public protests and media attention led to calls for the adoption of surveillance machines by the police.  Advocates of surveillance machines, including the family of Michael Brown, argued that these technologies would increase transparency and accountability surrounding police interactions with civilians by collecting and preserving data for public review.  Indeed, the most contentious police-civilian interactions often came down to public disputes as to the alleged threat posed by the civilian, versus the propriety of the police response. Surveillance machines promised a technological layer of accountability by rendering these hidden interactions public. Now that they are being implemented, however, the political economy of police technologies raises new concerns about concentrated private power, consumer platform protection, and adequate regulation of data in the future of policing.

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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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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.

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