Better Stories, Better Laws, Better Culture
posted by Ted Striphas
I first happened across Julie Cohen’s work around two years ago, when I started researching privacy concerns related to Amazon.com’s e-reading device, Kindle. Law professor Jessica Littman and free software doyen Richard Stallman had both talked about a “right to read,” but never was this concept placed on so sure a legal footing as it was in Cohen’s essay from 1996, “A Right to Read Anonymously.” Her piece helped me to understand the illiberal tendencies of Kindle and other leading commercial e-readers, which are (and I’m pleased more people are coming to understand this) data gatherers as much as they are appliances for delivering and consuming texts of various kinds.
Truth be told, while my engagement with Cohen’s “Right to Read Anonymously” essay proved productive for this particular project, it also provoked a broader philosophical crisis in my work. The move into rights discourse was a major departure — a ticket, if you will, into the world of liberal political and legal theory. Many there welcomed me with open arms, despite the awkwardness with which I shouldered an unfamiliar brand of baggage trademarked under the name, “Possessive Individualism.” One good soul did manage to ask about the implications of my venturing forth into a notion of selfhood vested in the concept of private property. I couldn’t muster much of an answer beyond suggesting, sheepishly, that it was something I needed to work through.
It’s difficult and even problematic to divine back-story based on a single text. Still, having read Cohen’s latest, Configuring the Networked Self, I suspect that she may have undergone a crisis not unlike my own. The sixteen years spanning “A Right to Read Anonymously” and Configuring the Networked Self are enormous. I mean that less in terms of the time frame (during which Cohen was highly productive, let’s be clear) than in terms of the refinement in the thinking. Between 1996 and 2012 you see the emergence of a confident, postliberal thinker. This is someone who, confronted with the complexities of everyday life in highly technologized societies, now sees possessive individualism for what it is: a reductive management strategy, one whose conception of society seems more appropriate to describing life on a preschool playground than it does to forms of interaction mediated by the likes of Facebook, Google, Twitter, Apple, and Amazon.
In this Configuring the Networked Self is an extraordinary work of synthesis, drawing together a diverse array of fields and literatures: legal studies in its many guises, especially its critical variants; science and technology studies; human and computer interaction; phenomenology; post-structuralist philosophy; anthropology; American studies; and surely more. More to the point it’s an unusually generous example of scholarly work, given Cohen’s ability to see in and draw out of this material its very best contributions.
I’m tempted to characterize the book as a work of cultural studies given the central role the categories culture and everyday life play in the text, although I’m not sure Cohen would have chosen that identification herself. I say this not only because of the book’s serious challenges to liberalism, but also because of the sophisticated way in which Cohen situates the cultural realm.
This is more than just a way of saying she takes culture seriously. Many legal scholars have taken culture seriously, especially those interested in questions of privacy and intellectual property, which are two of Cohen’s foremost concerns. What sets Configuring the Networked Self apart from the vast majority of culturally inflected legal scholarship is her unwillingness to take for granted the definition — you might even say, “being” — of the category, culture. Consider this passage, for example, where she discusses Lawrence Lessig’s pathbreaking book Code and Other Laws of Cyberspace:
The four-part Code framework…cannot take us where we need to go. An account of regulation emerging from the Newtonian interaction of code, law, market, and norms [i.e., culture] is far too simple regarding both instrumentalities and effects. The architectures of control now coalescing around issues of copyright and security signal systemic realignments in the ordering of vast sectors of activity both inside and outside markets, in response to asserted needs that are both economic and societal. (chap. 7, p. 24)
What Cohen is asking us to do here is to see culture not as a domain distinct from the legal, or the technological, or the economic, which is to say, something to be acted upon (regulated) by one or more of these adjacent spheres. This liberal-instrumental (“Netwonian”) view may have been appropriate in an earlier historical moment, but not today. Instead, she is urging us to see how these categories are increasingly embedded in one another and how, then, the boundaries separating the one from the other have grown increasingly diffuse and therefore difficult to manage.
The implications of this view are compelling, especially where law and culture are concerned. The psychologist Abraham Maslow once said, “it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.” In the old, liberal view, one wielded the law in precisely this way — as a blunt instrument. Cohen, for her part, still appreciates how the law’s “resolute pragmatism” offers an antidote to despair (chap. 1, p. 20), but her analysis of the “ordinary routines and rhythms of everyday practice” in an around networked culture leads her to a subtler conclusion (chap. 1, p. 21). She writes: “practice does not need to wait for an official version of culture to lead the way….We need stories that remind people how meaning emerges from the uncontrolled and unexpected — stories that highlight the importance of cultural play and of spaces and contexts within which play occurs” (chap. 10, p. 1).
It’s not enough, then, to regulate with a delicate hand and then “punt to culture,” as one attorney memorably put it an anthropological study of the free software movement. Instead, Cohen seems to be suggesting that we treat legal discourse itself as a form of storytelling, one akin to poetry, prose, or any number of other types of everyday cultural practice. Important though they may be, law and jurisprudence are but one means for narrating a society, or for arriving at its self-understandings and range of acceptable behaviors.
Indeed, we’re only as good as the stories we tell ourselves. This much Jaron Lanier, one of the participants in this week’s symposium, suggested in his recent book, You Are Not a Gadget. There he showed how the metaphorics of desktops and filing, generative though they may be, have nonetheless limited the imaginativeness of computer interface design. We deserve computers that are both functionally richer and experientially more robust, he insists, and to achieve that we need to start telling more sophisticated stories about the relationship of digital technologies and the human body. Lousy stories, in short, make for lousy technologies.
Cohen arrives at an analogous conclusion. Liberalism, generative though it may be, has nonetheless limited our ability to conceive of the relationships among law, culture, technology, and markets. They are all in one another and of one another. And until we can figure out how to narrate that complexity, we’ll be at a loss to know how to live ethically, or at the very least mindfully, in an a densely interconnected and information rich world. Lousy stories make for lousy laws and ultimately, then, for lousy understandings of culture.
The purposes of Configuring the Networked Self are many, no doubt. For those of us working in the twilight zone of law, culture, and technology, it is a touchstone for how to navigate postliberal life with greater grasp — intellectually, experientially, and argumentatively. It is, in other words, an important first chapter in a better story about ordinary life in a high-tech world.
March 6, 2012 at 11:59 am
Tags: copyright, free speech, Google, Intellectual Property, Privacy, property, search engines
Posted in: Configuring the Networked Self Symposium
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Responses (6)
Julie Cohen - March 6, 2012 at 11:34 pm
Crisis would be too strong a word. Call it a long and determined search for something that wasn’t a hammer.
Ted Striphas - March 7, 2012 at 2:03 pm
I do have one question for you, Julie: how does a court of law adjudicate play? Maybe a more concrete way of posing the question is: can you point to any jurisprudential examples that affirm your perspective on play? (Or was your intention with this idea more visionary, i.e., to affirm a set of principles that don’t seem to exist, legally speaking, in the here and now, but ought to?)
Julie Cohen - March 7, 2012 at 3:14 pm
Without ruling out the possibility that there might be such opinions, none comes immediately to mind. In general, I think courts get into trouble in this area – fair use decisions often lean heavily on romantic notions of deliberate play with Serious Critical Messages, while decisions finding privacy violations tend to offer weak explanations of the privacy interest. In part, I’m hoping to offer a new vocabulary that might be used to explain and justify decisions affirming the interests of “networked selves.” There is, I think, still considerable work to be done in getting them into usable form for courts.
Valerie Steeves - March 8, 2012 at 12:37 pm
Perhaps legislators and courts can directly address the boundaries required for play rather than play itself. For e.g., the struggle over kids’ online privacy was first articulated as a need to stop commercial websites from colonizing online playgrounds and reconstituting them for commercial purposes. COPPA switched the discourse to data protection and parental consent, which are much weaker tools when it comes to regulating the propensity of commercial organizations to colonize and mine social spaces. It’s no surprise that European data protection commissioners are now turning to human rights provisions to push back against this kind of mining, first with kids and now increasingly with big players like Facebook and Google. There are also provisions like s. 3 in Canada’s PIPEDA that provide an opening for the courts to judge the social impact of surveillance by determining whether or not a reasonable person would consider it appropriate in the circumstances. We can help breathe life into those kinds of provisions by – as Julie suggests – developing language to articulate a compelling interest in protecting the conditions for personhood/human flourishing. In fact, the inclusion of s. 3 in PIPEDA was a response on the part of legislators to lobbying by advocates who mobilized social science findings about the lived experience of privacy in online spaces.
Julie Cohen - March 8, 2012 at 12:56 pm
This is a great point, Valerie, and gets at how one might begin to think about operationalizing the “semantic discontinuity” principle — by addressing boundaries rather than play itself. I realize I should now say more but am rushing off to give a talk, so more later…
Julie Cohen - March 9, 2012 at 4:20 pm
OK, back to Ted’s question re the possibility of a jurisprudence that affirms play. One thing that I’ve been mulling for some time is the need for deep-level intervention that goes all the way back to law school pedagogy. An example from copyright: despite all the great work that has been done over the past few decades to develop a critical perspective on copyright, copyright casebooks and copyright classes still give the traditional incentive story pride of place. In both the classroom and the courtroom, comparisons of accused and allegedly infringed works often seem to proceed in a vacuum, which enables the incentives story and the idea of authorship as springing forth from the brow of the solitary genius to retain traction to a far greater extent than they deserve. Arguably copyright classes and copyright casebooks should be reimagined in a way that includes substantial components of art history and intellectual history — i.e., students ought to be forced to confront learning about where art comes from. And copyright infringement tests should be reimagined in a way that requires works to be placed in contexts.
I’ve tried to do some of this in recent years, and in general students have responded well to it – though a small minority of them absolutely hate it and opine, with ruthless certainty, that such things have no place in copyright law’s intellectual universe.
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