Between Truth and Power

tags

Privacy Julie Cohen

Notes

Introduction

focused not only on the moral costs of militarization but also on the opportunity costs.

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deterministic claims about the way that code “is” have evolved into normative claims about the way that it should be.

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Even the technologies in use in democratic societies increasingly incorporate, at their core, capabilities for differen- tiation, modulation, and interdiction of information flows.

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The essence of power lies precisely in its ability to shape-shift — to elude the perfect, crystalline characterizations with which scholars have attempted to both capture and cabin its methods of operation.

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the neoliberal political orientation emphasizes not only market liberties but also a market-based approach to structuring political and social participation.

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law is not simply superstructure but rather the means through which expressions of economic ration- ality and governmentality become specific, detailed, and actionable.

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new institutional settlements that alter the horizon of possibility for protective countermovements.

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once again, critics of law’s neoliberalization have focused principally on a set of burgeoning crises for public law but have largely neglected to ask a set of more fundamental questions

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My hope is that scholars more familiar with other legal systems will undertake similar projects.

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I. PATTERNS OF ENTITLEMENT AND DISENTITLEMENT

1. Everything Old Is New Again — Or Is It?

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emergence of informational capitalism in terms of three large-scale shifts that together constitute the movement toward informational capitalism: the propertization (or enclosure) of intangible resources, the dematerialization and datafication of the basic factors of industrial production, and the embedding (and rematerialization) of patterns of barter and exchange within in- formation platforms.

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evolution of modern regimes of intellectual property protection, identifying a series of profound changes that relate to both imagined justifications and patterns of exploitation and use.

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basic factors of industrial production identified by Polanyi—Iabor, land, and money—are becoming dematerialized

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debates about patent and copyright policy have concerned the relationships between individual creators and production intermediaries

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the patent and copyright regimes that evolved in the United States beginning in the late nineteenth century were increasingly optimized for facilitating industrial processes of intangible production.

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Although neither the Patent Act nor, initially, the Copyright Act gave employers rights to their employees’ creations, judge-made rules developed to validate corporate practices of asserting ownership over employee-created inventions

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aathorship of commissioned works should flow to the party that had assumed the economic risk.

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Courts rejected a long-standing rule allowing competitors to exploit “unworked” patents in exchange for a reasonable royalty, clearing the way for corporate patent owners to amass portfolios of patents

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Whereas nineteenth-century rhetoric had emphasized the public and democratic benefits to be gained from underwriting progress in science and learning, the distinctive flavor of instrumentalism that developed beginning in the mid-twentieth century focused more narrowly on incentives to production.

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The Supreme Court has cited both the argument from intermediary incentives and the argument from trade as ineluctable realities.

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foundations for the industrial organization of cultural and technical production have shifted to facilitate amassing intangible capital at scale.

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permits drafters in certain industries to practice systematic vagueness, and firms also have learned to practice selective, patent-preempting disclosure

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Each of those legal fields, moreover, values certainty and predictability in asset definition, and that overarching need shapes the way firms assert intellectual property claims, disfavoring doctrines perceived as vague and uncertain.

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Brand Values

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The growing prominence of brands and branding during the first half of the twen- tieth century reflected both the proliferation of mass-manufactured, prepackaged goods and the efforts of the nascent marketing industry.

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in any case marketers sought not only to understand tastes but also to shape them.

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brands and branding have come to function both as tools for self-articulation and as heuristics for so- cial sorting. Brands and branding underwrite complex systems of performative and fundamentally social consumption,

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Although courts and commentators initially characterized infringement lawsuits against down-market counterfeits as doctri- nally and economically baseless, mark owners eventually convinced courts to find infringement based on a novel theory of “post-sale confusion,”

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supplementary entitlements in brands have proliferated in ways that tacitly acknowledge and reinforce the expressive power of capital.

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shift toward a more diverse and differentiated landscape of intangible intellectual property entitlements.

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New (and Old) Legal Hybrids

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New types of entitlements—some legislatively decreed and others judicially invented—have mushroomed around the edges of existing entitlement schemes, blurring their borders and extending their reach.

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powerful new “law of look and feel” for the outputs of industrial designers.

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reinforced and expanded trade secrecy protections

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The regulatory disclosures required to bring certain types of biomed- ical and biotechnology innovations to market work at cross purposes to strategies based on secrecy.

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unable to marshal substantial empirical evidence

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opponents of intangible entitlements’ expan- sion and proliferation have been unable to disrupt the powerful syllogism linking propertization with increased progress.

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Labor, Land, and Money Reimagined

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data and algorithms have proved powerfully resistant to formal propertization.

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movement to an informational economy is reconstructing labor, land, and money as datafied inputs to new algorithmic modes of profit extraction. At the same time, data and algorithms have become the subjects of active appropriation strategies

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many of the legal arrangements now under threat trace their origins to Polanyi’s protective countermove- ment. Disruptive business models route around the modern versions of the regulatory constraints put in place to mitigate the harshest consequences of commodification

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While debates about the legal status of data and algorithms as property have been frozen in stalemate, the landscape of de facto appropriation and enclosure is in rapid and productive motion.

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Money without Investment

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the idea of money has grown increasingly notional and has become increasingly detached from the real-world activities that it was designed to enable.

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Because many cashless payment systems operate outside the traditional banking system and its associated overlay of in- surance and fraud-protection rules, however, they expose consumers who now take those protections for granted to a variety of hidden risks.

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Cashless payment systems, however, also undermine the flexibility, anonymity, and capacity for informality that are hallmarks of cash economies,

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Understood simply as a new and more efficient way to authenticate transactions and move money across borders, blockchain also seems more likely to reinforce the dominance of finance capital than to disrupt it.

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an important theme running through the new language of financialization, and a common denominator driving all of the interme- diation strategies discussed previously, is privileged access to flows of data about trades and transactions.

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Labor without Employment

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the Taylorist reconfiguration of the factory floor necessitated a parallel reconfiguration and informationalization of management,

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Workforce needs are more variable but also amenable to data-driven forecasting, and the communication challenges that formerly would have prevented on-demand labor scheduling have been all but eliminated.

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TaskRabbit and Mechanical Turk for temporary office work, Uber and Lyft for transportation, Airbnb for lodging, and so on. These entities call themselves information businesses rather than, for example, temporary employment agencies or transportation businesses,

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Their true business, they argue, is disintermediation

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People have needs for sta- bility and support that the system of wage labor for employers and its associated regulatory overlay addressed—never fully or perfectly, but at least deliberately and systematically.

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The extension of gig-economy ventures into developing countries has begun to exert extreme downward pressure on the earnings of user-workers located in developed countries.

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Land without Presence

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One strategy involved the resale of mortgage obligations and was conceived as a device for connecting individual borrowers with the deeper pockets and more diverse risk portfolios of participants in nationwide capital markets.” Ultimately, however, that strategy did much more than simply increase access; it fundamentally transformed the way that ownership of real property is un- derstood and valued.

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uring the 1990s and 2000s, secondary market demand came to dominate the mortgage lending landscape.

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assume, then that the ordinary rules of contract and real property law simply provided the neutral background

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ractices of mortgage resale and securitiza- tion that today are regarded as routine would not have been possible without prior acceptance of the idea of owning debt obligations as assets.

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although the justifications advanced for drafting uniform negotiability rules emphasized a need to facilitate business-to-business transactions, the new rules were used principally to facilitate trade in consumer obligations.

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the underwriters who concocted the securities came to view the transaction costs imposed by local real property recording offices as a drag on financial innovation.

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In fact, the MERS system and its participants did not maintain good internal records of member bank trades.

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The most visible reforms were prospective, raising standards for future mortgage lending—and thereby improving inputs to future financialization.

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self-interested, privatized institutional innovation in the form of the MERS system catalyzed both a massive redistribution of land-based wealth to financial institutions and their well-heeled clients and a massive privatization of resources that formerly had flowed to the public sector

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From Markets to Platforms

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In the emerging informational economy, the locus for those activities is the platform, a site of encounter where interactions are materially and algorithmically intermediated.

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teasing out the connections between platform logics and the emergent design of informa- tional property institutions.

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Prologue: Access and Legibility

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The intertwined functions that platforms provide— intermediation that provides would-be counterparties with access to one another and techniques for rendering users legible to those seeking to market goods and services to them—have evolved to become the core organizational logic of con- temporary informational capitalism.

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As media infrastructures—now digital and networked—have evolved into platforms, both the conditions of access and the need for access have changed. Access to the facilities offered by Amazon or Google or Visa/Mastercard or the iOS operating system requires assent to complex sets of legal and technical protocols. And access to platforms——whether online marketplaces or search engines or pay- ment systems or computing environments—is increasingly essential to reaching any customers at all.

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legibility became the essential function for an intermediary to provide to advertisers

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How Platforms Shape Economic Exchange

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The platform economy rewrites all parts of that story, reshaping the conditions of entry, the scope for disruption, and the sources and manifestations of economic power. Platforms do not simply enter markets, they replace (and rematerialize) them.

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Because of the platform environment's operational secrecy, however, purchasers of these services cannot easily monitor the quality of what they have purchased. More generally, platform users cannot easily determine whether platform firms are engaging in other, un- disclosed varieties of preferential placement.

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The tools for effecting legibility constructed by giant information businesses such as Google, Apple, and Facebook have become global platform-based “superstructures,” subsuming and rematerializing not only markets but also and more broadly information-gathering and social interaction.'®® At the same time, however, modeling and understanding the economic, social, and informational dy- namics of the platform environment has become extraordinarily difficult.

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Points of Access, Points of Control

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One important byproduct of the access- for-data arrangement is a quiet revolution in the legal status of data and algorithms as (de facto if not de jure) proprietary information property.

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Platforms use contracts systematically to facilitate and pro- tect their own legibility function, extracting transparency from users but shielding basic operational knowledge from third-party vendors, users, and advertisers alike.

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Boilerplate agreements are contractual in form but mandatory in operation,

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private reordering of even the most bedrock legal rights and obligations

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The combination of scale, asserted contractual control, and technical control enacts enclosure of both data and algorithmic logics as an inexorable reality

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Facebook offers advertisers placement precisely targeted to the inferred needs and desires of its billions of users but never direct access to the data or algorithms themselves.

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traditional intellectual property rights play helpful but only secondary roles in the process of de facto propertization,

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2. The Biopolitical Public Domain

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emergence of the platform as the core organizational logic of the political economy of informational capitalism.

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origins of the presumptive entitlement that platforms and other infor- mation businesses assert to appropriate and use data flows extracted from people.

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typically considers such activities as raising problems of privacy or data protection, and typically has focused on regulation of such activities after the fact. But the legal framework within which collection, processing, and use of per- sonal data occur is not simply a reactive framework, nor is it simply concerned with the relationship between commercial or law enforcement activities and privacy.

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Contemporary practices of personal data extraction and processing constitute a new type of public domain, which I will call the biopolitical public domain: a source of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity

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public domain made up of those materials is biopolitical —rather than, say, personal or informational—because the productive activities that it frames as desirable are activities that involve the description, processing, and management of populations, with consequences that are productive, distributive, and epistemological.

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construct of a public domain both designates particular types of resources as available and suggests particular ways of putting them to work.

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constitutes personal data as available and potentially valuable:

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constitutes the personal data harvested within networked information environments as raw.

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Logics of Abundance and Extraction

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The process of constructing a public domain begins with an act of imagination that doubles as an assertion of power.

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The copyright and patent regimes that emerged during the nineteenth century in Europe and the United States depend centrally on the idea of the intellectual public domain as a repository of raw materials

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the idea of a public domain thus both emphasizes and assumes two conditions. The first is abundance.

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The second condition that the idea of a public domain presumes is the absence of prior claims to the resource

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their traditions of occupancy and use were not understood as ownership claims

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intellectual property regimes traditionally have taken a dismissive stance toward those claiming interests in folk art and traditional knowledge.

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constitute the ever-expanding universe of personal data as a terra nullius for enterprising data developers,

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all the world is America again, and doubly so: the information resources extracted from populations worldwide flow into the databanks of the new information capitalists, who then use those resources to devise new profit-making strategies.

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far-reaching reorganizations of sociotechnical activity to facilitate harvesting personal data “in the wild” and to mark such data, once collected, as owned.

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Prologue: Fair Credit Reporting and Walled Gardens

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data broker industry originated in practices of customer profiling and target marketing developed by and for members of the financial services industries—and in the empty spaces left by incomplete legal regulation of those practices.

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Digital Breadcrumbs

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The IETF working group had identified the privacy issues raised by cookies very early on, but efforts to write a uniform level of heightened user control into the standard met with pushback. Technology companies preferred a more minimal standard that would afford greater flexibility in implementation, and members of the rapidly growing online advertising industry sought to preserve the possibility of a promising new business model.

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“Big Data,” was a fast-evolving group of techniques for converting voluminous, heterogeneous flows of physical, transactional, and behavioral information about people (or about anything else) into a particular, highly data-intensive type of knowledge.”

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restricting the use of so-called spyware failed repeatedly. Merchants and communications providers that deployed cookies for what they saw as legitimate purposes balked at definitional language extending labels such as “spyware” and “cybertrespass” to their own activities.

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Technology and information businesses urged Congress to move cautiously in order not to foreclose innovative market responses.

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FTC attempted to fill the regulatory gap by asserting its general authority to police unfair and deceptive practices in commerce. As a practical matter, this meant that the construct of no- tice and consent became the dominant regulatory framework

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The Sensing Net

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The radical expansion of surveillance capability via cookie technology was an unin- tended consequence of the search fora viable protocol for commercial transactions, but subsequent continuing extensions of surveillance capability have been more de- liberate.

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text messages, internet searches, social networking updates, personalized news and en- tertainment feeds, and interactions with dedicated apps for traffic, transit, shopping, investment and personal finance, fitness, and much more.

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Transit passes and highway toll transponders record daily travels; smart home thermostats, alarm systems, and building access cards create digital traces of comings and goings; special-purpose “wearables” collect and upload biometric data

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configure the world of networked digital artifacts in ways that make enrollment seamless and near-automatic.

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important details about the kinds of behavioral data that the sensing net extracts simply are not disclosed to users at all.

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The conception of consent emerging from that default condition is unprece- dented in the law of contracts or any other body of law.

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In the contemporary networked marketplace, consent flows from status, not conduct, and attaches at the moment of marketplace entry. Under those circumstances, the lawyerly emphasis on such things as disclosure, privacy dashboards, and competition over terms becomes a form of Kabuki theater that distracts both users and regulators from what is really going on.

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work both to generate large quantities of data and to make public domain status the default condition for the data that are generated.

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seeming bounty depends heavily on both technical design and user agency. The sublimation of consent within the sensing net is a technique for supply chain management and is designed to ameliorate those uncertainties. It operates to call the biopolitical public domain into being and to define it as a zone of free and productive appropriation.

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The Postcolonial Two-Step

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the postcolonial two-step: initial extensions of surveillance via a two-pronged strategy of policing and development, followed by a step back as the data harvests are consolidated and absorbed.

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Secrecy as Enclosure

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frustrates the most basic efforts to understand how the internet search, social networking, and consumer finance industries sort and categorize individual consumers.

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In 2014, a Senate committee seeking to discover information about industry structure and contracting practices found itself effectively stonewalled

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vague and general responses and claiming inability to locate requested documents.

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Realizing the profit potential of commercial surveillance activity requires practices that mark data flows with indicia of ownership.

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“digital enclosure” to denote the pervasive informational exposure that occurs within commercial surveillance environments and the consequent loss of control over self-articulation.

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al- though intellectual property theory places “facts” permanently in the public domain, intellectual property practice traditionally has recognized a need for gap-filling pro- tection in certain industries, and has looked to trade secrecy and contract law to fulfill that need.

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difference between public domain and commons as resource governance strategies.

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From Raw to Cooked: A Political Economy of Patterns and Predictions

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Data Cultivars

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frame the data harvested from individual users of networked information and communications technologies as raw streams of observation that are parsed, enhanced, and systematized through their own productive labor.

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Scholars who study information systems argue that the “raw data” framing is not, and never could be, entirely accurate. Inevitably, data collection activities are structured by basic judgments about what to collect, what units of measurement to use, and what formats and metadata will be used

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equally inaccurate to say that the data collected for processing just happen to be there. The flexible and adaptive techniques used within contemporary surveillance environments are—and are designed to be—productive of particular types of infor- mation.

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Techniques for participatory data extraction are intended to cultivate habits of self-identification in a very particular way.

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power becoming ontological: power expressed not through hegemonic control of meaning but rather through techniques for making the crowd known to itself.

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collection of personal data on an industrial scale inevi- tably adopts an active, curatorial stance regarding the items to be gathered. Strains of information are selected and cultivated precisely for their durability and com- mercial value within a set of information processing operations. The data are both raw and cultivated, both real and highly artificial.

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Data Refineries

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sites for large-scale, automated processing of data flows extracted from people function as information-age refineries, converting those flows into the forms best suited for exploitation on an industrial scale.

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make human behaviors and revealed preferences calculable, predictable, and profitable in aggregate.

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Data doubles are, in other words, biopolitical in character: they are designed to enable the statistical construction, management of, and trade in populations.

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in the era of ascendant neoliberal governmentality, it is data refineries’ very privateness that gives their outputs normative and epistemological authority.

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operate to conceal the extent of our dependence on monoculture and to en- trench that monoculture in ways that make addressing its external effects on human and environmental health extremely difhicult.

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Data Markets

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question of what might come to qualify as a good or service and that of how transactions might be made intelligible as exchanges.

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subject matter traded in markets must be conceived as a “calculable good”:

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distributed valuation of calculable goods.

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commonly understood institutional struc- ture within which exchanges can occur.

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ublic-facing rhet- oric about personal data harvesting and processing is most usefully understood in an analogous way, as an example of marketing-speak

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the platform as the core organizational logic of informational capitalism.

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Consuming Consumers

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The data refinery is only secondarily an apparatus for producing knowledge; it is principally an apparatus for producing wealth.

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The overriding goal of data refineries and data markets is not understanding but rather predictability in pursuit of profit.

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submerge important exchange-related features of transactions and relationships in business-to-consumer markets. They produce calculated exchanges that are increasingly etiolated and social processes that are increasingly colonized by privatized data flows

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The Moore court, however, did not hold that human tissue could not be the subject of any proprietary claims; rather, it contrasted Moore’s claim to that of the research scientists who had labored to develop the patentable byproduct.

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the court’s famous anti-commodification opinion articulated a powerful logic of productive appropriation

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The Power of Appropriative Privilege

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subordinates considerations of human well-being and human self-determination to the priorities and values of powerful economic actors.

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alienates consumers from their own data as an economic resource and from their own preferences and reservation prices as potentially equalizing factors in economic transactions. The emerging system of data-driven predictive profiling is designed to strip away opportunities for bargaining and arbitrage, producing a set of wholly nontransparent exchange institutions that reconfigure demand to match supply.

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Reimagining consumer markets as sites of unilateral technosocial sorting undermines both their utility as markets and their legitimacy as decentralized governance processes.

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3. The Information Laboratory

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Amplifying Collective Unreason

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What has changed is that percentages of respondents reporting strongly negative feelings about those with opposing views have skyrocketed.*® That result stands in jarring contradiction to the utopianism of the early internet pioneers, who assumed that expanded access to information online would usher in a new era of cosmopolitanism and enlightened tolerance.

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Can't Touch This: The Unbearable Lightness of Intermediation

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narratives that make unaccountability for certain types of information harms seem logical, inevi- table, and right.

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surveillance-innovation complex within which advances in information processing are privileged for their own sake and regulatory oversight is systematically marginalized.

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disregard of the fact that the networked dig- ital information environment is neither neutral nor self-regulating,

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intertwined logics of innovative and ex- pressive immunity underwrite broad regimes of de jure and de facto insulation from accountability for internet intermediaries and other information businesses.

NOTER_PAGE: (101 . 0.36885245901639346)

Innovation Jumps the Shark

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position innovation and protective regulation as intrac- tably opposed.

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in- novation as an autonomous and inevitably beneficial process that is the natural re- sult of human liberty.

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regulatory regimes have long endorsed the precautionary principle, which dictates caution in the face of as-yet-unknown and potentially significant risks. Importantly, rather than stifling “innovation,” the precautionary approach is widely recognized as creating incentive effects

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faith in the “technological sub- lime” is a powerful motivator, reinforcing virtuous narratives about automated, data-driven surveillance and, for some, informing the confident expectation of a “singularity” waiting in our soon-to-be-realized future

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From Persuasion to Experimentation

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The Most Important Law

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Identity and Authentication in the Cloud

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The Culture of Capture

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“deep capture,” or capture on the level of ideology.'"* The intertwined frames of the information marketplace and the information laboratory have attained the status of ground truths,

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Law and the Construction of Information Power, Revisited

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The communicative spaces produced by platform-based, massively intermediated information infrastructures are not neutral spaces. They are spaces optimized for eliciting automatic, instinctual reactions and for engendering, amplifying, and exploiting cascade-based diffusion, polarization, and relativization. Public dis- course in a democratic society is, and should be, contentious and unruly, but thereis also a difference between bending and breaking.

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4. Open Networks and Closed Circuits

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true sovereignty consists in the power to say when the excep- tion exists.'

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some actions are lawlike in form but not in substance; they manifest the bare force of law stripped of the features that give the rule of law legitimacy.

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In the networked, massively intermediated information environment, the themes of exception and bare force of law also take on a new kind of meaning. Sovereignty consists in the power to say what information will flow

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lacunae within which absolute authority over information flow is both unaccountable and unquestioned.

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Dangerous Knowledge

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expert training in human rights advocacy could work to legitimize dangerous or- ganizations."” By traditional First Amendment standards, the argument was laugh- able; rhetorical battles over legitimacy are exactly the sorts of contests that belong in the realm of persuasion. The majority accepted it uncritically

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As domains of ex- pertise far removed from violence and lawlessness were recast as inextricably entwined with threats to the body politic, government practices that the courts of an earlier era would have recognized instantly as overbroad and politically suspect came to seem both apolitical and existentially justified.

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Other People’s Property

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State Secrets and State Secrecy

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Struggles over Facilitation and Control

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Finding and Paying for Contraband

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Thirty years ago, the principal enforcement tool was the civil infringement lawsuit. Criminal enforcement was relatively rare, and capabilities for technical enforcement were virtually nonexistent.*® Today, all that has changed.

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Circumventing Digital Barriers

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series of court rulings interpreting the provisions to bar the development of unauthorized devices for rendering content, even if the content itself was lawfully acquired, gives copyright holders and their licensed tech- nology developers comprehensive de facto control over the design and function- ality of digital media players, video recorders, and gaming systems.

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fore- close unauthorized experimentation and innovation of all sorts.

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software copyright owners typically structure end-user transactions as licenses

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Keeping Unauthorized Secrets

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Information Power and the Reconstruction of Law (and Order)

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the “new normal” in the platform-based, massively intermediated infor- mation economy is a condition in which fiat-based prohibitions on information flow are both increasingly routine and increasingly inscrutable.

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platform businesses enjoy increasing autonomy both to define the terms of their own compliance with mandates promulgated by state actors and to create and refine their own operational arrangements.

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II. PATTERNS OF INSTITUTIONAL CHANGE

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in institutional processes structured by procedural rules, the “haves” tend to come out ahead because, as repeat players with disposable resources to spare, they can play for rules in addition to results.!

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5. The End(s) of Judicial Process

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the judicial system now seems to function principally to funnel disputes toward settlement.

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movement to informational capitalism has confronted the judicial system with two large and interrelated problems: a prolifer- ation of asserted harms that are intangible, collective, and highly informationalized; and an unmanageably large and ever-increasing number of claimants and interests.

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Managerialism is not simply an orientation but rather a flourishing discipline that has been called “the first neo-liberal science.”®

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management is the practice of deploying informational techniques to reshape organizations along competitively efficient lines; manageri- alism refers to the ideological framework that both posits such reshaping as desir- able and prescribes how it may best be achieved.

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Some kinds of claims—most notably those for recognition and enforcement of intellectual property rights and similar proprietary interests—are afforded extensive and creative process, while others——most notably those for rec- ognition and vindication of information privacy, data protection, consumer, and worker claims-—are afforded only minimal or notional process.

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Who's Harming Who? Legal Constructions of Injury and Justiciability

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would-be plaintiff must establish “injury in fact,”

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Confronted with a variety of situations involving complex, in- formationally mediated activities and correspondingly complex harms, the judicial system erected jurisdictional bulwarks against certain kinds of claims.

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propositions about harm, imminence, causal connection, and redressability rest on tightly constructed syllogisms that verge on circularity

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courts function principally to discipline deviations from marketplace norms rather than to correct more sys- tematic marketplace excesses.

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Concreteness and the Problem of Intangibiiity

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Information privacy claims, they conclude, are really no more than generalized claims about the perceived un- fairness of economic and technological processes that people have not yet learned to accept.’

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One certainly could do at least as well (if not better) at valuing and compensating privacy injury.

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both particularity and concreteness are so- cially constructed attributes.

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Imminence and the Problem of Risk

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courts have been consistently more receptive to risk-based reasoning about injury to dig- ital property interests.

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Media coverage of data breaches also tends to point fingers at partic- ular culprits—the data custodian, its purportedly ham-fisted employees, and/or the nameless hackers that perpetrated the theft—rather than at the background condition of widespread, “ordinary” data harvesting and processing.

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many instances of payment fraud and identity theft do not stem from mass data breaches. Rather, they are the foreseeable results of design choices that privilege convenience and speed over data integrity and security.

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framing the data breach or the exposure toa chemical with a known risk profile as the exception warranting emergency response has enabled courts to ignore the extent to which background norms and design practices work to enshrine vulnerability as a marketplace norm.

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Traceability and the Problem of Causation

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information privacy claims have seemed to present extreme iterations of both kinds of traceability problems. Many such claims present both probabilistic plaintiffs (ie., plaintiffs as to whom more discrete privacy injuries, such as loss of job opportunities, are absolutely certain in aggregate but difficult to predict on an individual level) and probabilistic defendants (i.e., defendants whose conduct contributes in an epide- miological sense to those injuries). Defendants argue that plaintiffs cannot link the asserted injuries to the actions of any particular firm, and courts usually agree.

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ever more intense political and ideological pushback against the very idea of broadly distributed liability

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Alone/Together: The Evolving Institutional Forms of Mass Justice

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Outsourced Production: Boilerplate and Beyond

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procedural devices that are designed to remove cer- tain kinds of disputes and ancillary knowledge production issues from the judicial system and assign responsibility for managing them to other actors.

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courts have become increasingly willing to enforce boilerplate clauses that constrain access to judicial process.

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new generation of firms deploys a (radically reenvisioned) concept of privity to keep consumers and workers close, invoking narratives about consent to bar them from asserting a variety of claims that the law otherwise might support. As in the data sensing and harvesting arrangements studied in Chapter 2, the underlying conception of individual agency is vanishingly thin, consisting of little more than the ability to decline a transaction or employment relationship.

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As a practical matter, boilerplate waivers effectively instantiate private regulation

NOTER_PAGE: (167 . 0.38922155688622756)

freezes the gradual, iterative evolution of legal doctrine.

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The lens of managerialism, however, suggests a complementary perspective that situates boilerplate waivers of judicial process within the contemporary turn to outsourcing in the interest of lean and nimble production.

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rely on market-based shareholder action as the principal disciplinary mechanism.

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Once a particular kind of dispute has been outsourced, any larger policy issues that such disputes implicate may seem irrelevant, extraneous, or simply above the pay grade of the managerial employees to whom oversight is assigned,

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For the vast majority of consumers who become involved in disputes with providers of goods and services, the first and last stop is the provider’s internal process

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situate the systematic decentering of litigation for certain categories of disputes within the neo-Polanyian framework of institutional change

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Flexible Production: Aggregate Litigation Reconsidered

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aggregation and management of claims for asserted large-scale harm.

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The courts and Congress have systematically restricted access to class action procedures, and those procedures also have proved insufficiently adaptable to new kinds of claims for networked, intangible harm.

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Class complaints asserting broader, structural theories of civil wrong- doing not specifically delineated by statute face an uphill battle to both certification and admission of statistical evidence.

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platform defendants in particular have developed a suite of powerful strategies for avoiding or drastically limiting both class certification and the scope of available remedies.

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the supervisory injunction—eventually restyled as the consent decree——gradually began to impose a new form of institutional discipline on the courts as well.

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adept at incorporating consent decree compliance into their regular business practices with only minimal disruption.

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In practice, however, the flexible production of compensation and oversight has played out toward quite different ends, evolving in ways that have systematically minimized the likelihood of meaningful structural reform of market and public institutions.

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Modular Production: Intellectual Property Experimentalism (and Its Limits)

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In suits against platform firms, distributors of circumvention technologies, and other new information intermediaries, joinder of plaintiffs that together repre- sent entire industries has become routine. The result is effectively class litigation as to the copyrights involved, but without the restrictions that the requirements for class certification would impose.™

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Reimagining Dispute Resolution for the Era of Networked Harms and Large Numbers

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The Regulatory State in the Information Age

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Seeing Like a (Regulatory) State

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From Market Power to Platform Power

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Networks, Standards, and Transnational Governance Institutions

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Dominance as Hegemony: The Problem of Unchecked Authority

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the connection between market dominance and policy dominance tends to be indirect. In the era of copper wires and common carriage requirements, telephone carriers could not filter out undesirable or un- lawful conversations. The standards governing such matters as the layout of a type- writer keyboard or the arrangement of prongs on an appliance plug are thoroughly agnostc as to their users’ political beliefs and policy commitments. Many contemporary disagreements over technology policy arise precisely be- cause the emergence of networked information and communications technologies has set protocol and policy on converging paths.

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Legal Standards Wars: The Problem of Regulatory Arbitrage

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Network Power and Moral Hazard: The Problem of the Authoritarian End Run

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Extreme Multistakeholderism: The Problem of Public Accountability

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Technocracy and Its Discontents: The Problem of Publicly Available Law

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reliance on technical vernaculars produces both some obvious entry barriers and some less obvious obstacles to broadly democratic policymaking.

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Standards, Hubs, and Platforms: The Problem of Private Sovereignty

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Designing Institutional Forms for Rule of Law 2.0

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The Future(s) of Fundamental Rights

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