Archive for the ‘Configuring the Networked Self Symposium’ Category
Some thoughts on Cohen’s Configuring the Networked Self: Law, Code, and the Play of Everyday Practice
posted by Brett Frischmann
Julie Cohen’s book is fantastic. Unfortunately, I am late to join the symposium, but it has been a pleasure playing catch up with the previous posts. Reading over the exchanges thus far has been a treat and a learning experience. Like Ian Kerr, I felt myself reflecting on my own commitments and scholarship. This is really one of the great virtues of the book. To prepare to write something for the blog symposium, I reread portions of the book a second time; maybe a third time, since I have read many of the law review articles upon which the book is based. And frankly, each time I read Julie’s scholarship I am forced to think deeply about my own methodology, commitments, theoretical orientation, and myopias. Julie’s critical analysis of legal and policy scholarship, debate,and rhetoric is unyielding as it cuts to the core commitments and often unstated assumptions that I (we) take for granted.
I share many of the same concerns as Julie about information law and policy (and I reach similar prescriptions too), and yet I approach them from a very different perspective, one that is heavily influenced by economics. Reading her book challenged me to confront my own perspective critically. Do I share the commitments and methodological infirmities of the neoliberal economists she lambasts? Upon reflection, I don’t think so. The reason is that not all of economics boils down to reductionist models that aim to tally up quantifiable costs and benefits. I agree wholeheartdly with Julie that economic models of copyright (or creativty, innovation, or privacy) that purport to accurately sum up relevant benefits and costs and fully capture the complexity of cultural practices are inevitably, fundamentally flawed and that uncritical reliance on such models to formulate policy is distorting and biased toward seemless micromanagement and control. As she argues in her book, reliance on such models “focuses on what is known (or assumed) about benefits and costs, … [and] tends to crowd out the unknown and unpredictable, with the result that play remains a peripheral consideration, when it should be central.” Interestingly, I make nearly the same argument in my book, although my argument is grounded in economic theory and my focus is on user activities that generate public and social goods. I need to think more about the connections between her concept of play and the user activities I examine. But a key shared concept is that indeterminacy in the environment and the structure of rights and affordances sustains user capabilties and this is (might be) normatively attractive whether or not users choose to exercise the capabilities. That is, there is social (option) value is sustaining flexibility and uncertainty.
Like Julie, I have been drawn to the Capabilities Approach (CA). It provides a normatively appealing framework for thinking about what matters in information policy—that is, for articulating ends. But it seems to pay insufficient attention to the means. I have done some limited work on the CA and information policy and hope to do more in the future. Julie has provided an incredible roadmap. In chapter 9, The Structural Conditions of Human Flourishing, she goes beyond the identification of capabilities to prioritize and examines the means for enabling capabilities. In my view, this is a major contribution. Specifically, she discusses three structural conditions for human flourishing: (1) access to knowledge, (2) operational transparency,and (3) semantic discontinuity to be a major contribution. I don’t have much to say about the access to knowledge and operational transparency discussions, other than “yep.” The semantic discontinuity discussion left me wanting more, more explanation of the concept and more explanation of how to operationalize it. I wanted more because I think it is spot on. Paul and others have already discussed this, so I will not repeat what they’ve said. But, riffing off of Paul’s post, I wonder whether it is a mistake to conceptualize semantic discontinuity as “gaps” and ask privacy, copyright, and other laws to widen the gaps. I wonder whether the “space” of semantic discontinuities is better conceptualized as the default or background environment rather than the exceptional “gap.” Maybe this depends on the context or legal structure, but I think the relevant semantic discontinuities where play flourishes, our everyday social and cultural experiences, are and should be the norm. (Is the public domain merely a gap in copyright law? Or is copyright law a gap in the public domain?) Baselines matter. If the gap metaphor is still appealing, perhaps it would be better to describe them as gulfs.
posted by Ann Bartow
To start with, I liked the book a lot. It is interesting and engaging and extremely well written. I appreciated Julie Cohen’s fearless and articulate challenges to dominant strains of legal academic liberalism more than I can express. This book will motivate a lot of scholars to think more deeply about our work, as well we should.
I also think that Julie Cohen’s recognition of the freighted disengagement of information privacy activism with information access theory, and information activism with information privacy theory, is brilliantly insightful. The freedom/control binary is something every Internet Law and Intellectual Property Law legal scholar wrestles with in some form (and arguably we are hardly alone in this, subject matter wise). We want the machinery of the law to support good things and restrict bad ones. And we are often optimistic that this can be achieved in particularized contexts if only the applicable government actors can be educated and energized. But we tend not to integrate our practical impulses with overarching theories in ways that allow us to advocate effectively for important general principles while still situating each affected person as an individual end, which is a prime directive of a capabilities focus. Julie Cohen takes us to task for this, and correctly so.
I’ll segue now into a series of “Hey, I’m an individual end too!” related observations about reasons for the lateness of my Symposium contribution. I am currently serving as a 2011-12 Fulbright Scholar at Tongji University in Shanghai, China. Though Tongji University is a top tier national research institution, my Internet access is limited, to put it lightly. It was only by waking at 2 am and logging on to my laptop within the chilly confines of my concrete box apartment for three consecutive nights that I was able to gain access to this book, by downloading it one glacially accruing chapter at a time, from here (http://www.juliecohen.com ), after the Tongji students had retired to their beds and relinquished a bit of bandwidth. Having agreed to participate in this Symposium with some enthusiasm, I had tried to get the Yale University Press to snail mail me a hard copy while I was back in the United States for a couple of weeks in late January, but to no avail. I point that out not to be snarky (well, maybe a little) but to introduce my main critique of the book, which is that you can’t easily theorize your way around or out from under the idiosyncrasies of inconsistent authoritarianism. It is impossible for even a motivated self to rationally mediate what she doesn’t understand and can’t predict, no less control.
To illustrate further by ongoing personal anecdote: Receiving a free hard copy of the book was my preferred path to situational flourishing. Receiving free books generally is one of the best perquisites of academia, and something I hope I will never again take for granted. Buying an authorized hard copy of Configuring the Networked Self here in China, if it is even possible, is likely to be an egregiously expensive proposition. An electronic copy for my Kindle would have set me back $43 plus international delivery fees. While I appreciate and benefited from Julie Cohen’s willingness to make the book available for downloads that do not require dollars, the cost of acquiring the tome from her website was actually pretty steep in terms of time, frustration and lost sleep. I am very grateful to have Internet access at all, but unlike most Chinese people I discuss the matter with, I know what I am missing, in terms of speed and performance.
My understanding is that the Internet here is intentionally slowed, to facilitate monitoring of users. I do not have any expectation of privacy here in China, either on or offline. And I am well aware of the vaunted Great Firewall of China. But I saw no indication of any effort to intentionally block or even encumber access to the online version of the book under discussion. The fact that each chapter had to be downloaded individually was a contributing impediment I cannot blame Chinese Internet for. I must also note that several of my students offered to rise at 2 am and do the downloading for me so that I “could have a good rest,” demonstrating the astounding cultural veneration of professors here. I could not have in good conscience accepted these ridiculously kind offers but the fact that they were sincerely made is also relevant to my capabilities/functioning continuum.
The capabilities approach Julie Cohen embraces requires an understanding that conversions of the exact same commodities (e.g. commoditized music, computer software, Internet access generally, and Julie Cohen’s book specifically) will lead to different levels of functioning for consumers due to variations in the characteristics of the societies in which people live. Societal structures and constraints influence choices that can move capabilities to functionings, or impede this progress.
While the book certainly acknowledges this abstractly, it doesn’t fully account for semi-networked realities such as: mine, which required me to choosing between three nights of adequate sleep, and paying more for an e-book than I did for a brand new, fairly nice bicycle, complete with basket, bell and u-lock; or that of one of my Tongji colleagues, who cannot realistically afford either a Kindle or the 300 to 400 rmb an authorized copy of the book would cost, on a salary of about 4,000 rmb per month, and who has an infant child who already makes sleep a scare commodity. Both my colleague and I are professionally flourishing in our own inimitable ways, but he has to work far harder at it than I do, and both of us currently struggle more to stay informed about our topical areas of interest than almost any American law professor reading this. Yet we are still far more informationally privileged than many people within China. I am not sure how well Configuring the Networked Self really speaks to either our situations or our situatedness. But it was still a great read.
posted by Ian Kerr
I remember meeting Julie Cohen for the first time. It was right round the time she was writing “Lochner in Cyberspace.” We were hanging during one of the breaks at the Berkman Center’s first really big conference on the Internet & Society, eating ice cream cones with Mark Lemley.
If you had told me then that the (then) University of Pittsburgh, Professor of Law would one day turn her academic focus to many of Nietzsche’s preoccupations in La Gaya Scienza, I am not sure that I would have believed you. The Heraclitian privileging of becoming over being? Human maturity consisting in the seriousness of a child at play? Remaining faithful to the body? What does any of that have to do with digital rights management or a right to be anonymous? Read the rest of this post »
posted by Paul Ohm
Julie Cohen has written a great book, perhaps the most important Cyberlaw book since Code. I say this even though I recognize the many virtues of Cyberlaw books written by Jonathan Zittrain, Tim Wu, Yochai Benkler, and Barbara van Schewick, privacy books written by Dan Solove, Lior Strahilevitz, Viktor Mayer-Schönberger, and many other books published recently. But not since Code has one book challenged the way we conceptualize and try to solve technology problems as much or as well as this book does.
In this post, I want to focus on “semantic discontinuity,” the label Cohen gives to the most novel and interesting construct in the book. Semantic discontinuity is one of three “principles that should inform the design of legal and technical architectures,“ along with “access to knowledge” and “operational transparency.” In her words, “semantic discontinuity is the opposite of seamlessness. . . . It is a function of interstitial complexity within . . . institutional and technical frameworks.” It serves a “vital” function, “creat[ing] space for the semantic indeterminacy that is a vital and indispensable enabler of the play of everyday practice.” (Kindle location 4288)
In other words, semantic discontinuity valorizes noise, inefficiency, constraints, and imperfections. As this list illustrates, the most striking thing about this book is the size of the herd of sacred cows it leads to the slaughter.
posted by Valerie Steeves
I have to admit I’ve enjoyed the to and fro between Julie and Anita, primarily because I’m usually the one trying to convince post-modern social scientists that it’s worthwhile having a discussion with legal scholars It’s kind of fun watching the “other shoe” drop…
Julie, I think the book is a fabulous contribution. What I liked most about it is how you mobilize the insights of social science to reinvigorate the legal debate. To my mind, empirical explorations of the lived experiences of real social actors are an essential corrective to some pretty bad policy. And, for a reason I can’t quite fathom, American legal scholars are coming a bit late to the party. I was surprised for e.g., last year when at the Privacy Law Scholars Conference, the American legal community was surprised to hear that children and young people not only value their online privacy but adopt a number strategies that make good use of the interstitial spaces you identify to construct their own privacy and/or resist surveillance. That’s old news that was first established at least seven years ago by Canadian and European researchers working from a social constructionist perspective. Your book goes a long way to putting the American legal community into dialogue with social science in a way that can benefit both.
I have some strong opinions about the theoretical issues at play between liberalism and post-modernism, but I’d like to put them aside for a moment and respond to your request for feedback on the policy prescriptions in the book. As you very rightly note, the policy debate around privacy has been superficial to date, and we do need new approaches that can protect the liminality that’s necessary to experience authentic subjectivity in online spaces. I would suggest that the paucity of policy choices isn’t accidental, and that data protection is at least partly to blame for the current lack of effective policy options. After all, data protection was first enacted in Hesse, Germany to settle a fight over which level of government would control electronic databases; the next data protection Act was passed by Sweden to protect its national sovereignty in the event that its national citizen registry – the largest of its kind at the time – fell into foreign hands.
However, when the Council of Europe first addressed the issue in 1973, it used human rights language that linked privacy to human dignity and the need to protect people from categorical discrimination. Interestingly, when the second CoE resolution came out a year later, that language receded and was replaced by the instrumental approach to fair information practices that now dominates privacy legislation around the world. I would suggest that the move from the language of human dignity – what you might call human flourishing – to the language of control over data alienated from the human subject was a strategic one; European bureaucrats and American business people lobbied hard for language that would not restrict government surveillance or commercial innovation.
By developing language to talk about the importance of privacy to subjectivity, legal scholars can contribute to a deeper understanding of the role of the law in promoting human flourishing by developing the links between privacy and notions of personhood and dignity. European courts have been able to push back against surveillance by using human rights language – think of the German census case and the development of a right to informational self-control and the (non-European) example of the use of constitutional protections for the inviolability of the person in Iceland as a corrective for the over-reaching nature of the Icelandic genetic database.
Of course, this would push American human rights discourses beyond the comfort zone of civil rights and require a critical analysis of the commercial imperatives that shape the online world. Welcome to post-liberalism
posted by Frank Pasquale
Julie Cohen’s extraordinarily illuminating book Configuring the Networked Self makes fundamental contributions to the field of law and technology. In this post, I’d like to focus on methodology and theory (a central concern of Chapters 1 to 4). In another post, I hope to turn to the question of realizing Cohen’s vision of human flourishing (a topic Chapters 9 and 10 address most directly).
Discussions of rights and utility dominate the intellectual property and privacy literatures.* Cohen argues that their appeal can be more rhetorical than substantive. As she has stated:
[T]he purported advantage of rights theories and economic theories is neither precisely that they are normative nor precisely that they are scientific, but that they do normative work in a scientific way. Their normative heft derives from a small number of formal principles and purports to concern questions that are a step or two removed from the particular question of policy to be decided. . . . These theories manifest a quasi-scientific neutrality as to copyright law that consists precisely in the high degree of abstraction with which they facilitate thinking about processes of cultural transmission.
Cohen notes “copyright scholars’ aversion to the complexities of cultural theory, which persistently violates those principles.” But she feels they should embrace it, given that it offers “account[s] of the nature and development of knowledge that [are] both far more robust and far more nuanced than anything that liberal political philosophy has to offer. . . . [particularly in understanding] how existing knowledge systems have evolved, and how they are encoded and enforced.”
A term like “knowledge system” may itself seem very abstract and formal. But Cohen’s work insists on a capacious view of network-enabled forms of knowing. Rather than naturalizing and accepting as given the limits of copyright and privacy law on the dissemination of knowledge, she can subsume them into a much broader framework of understanding where “knowing” is going. That framework includes cultural practices, norms, economics, and bureaucratic processes, as well as law.
Read the rest of this post »
March 8, 2012 at 12:26 am Posted in: Configuring the Networked Self Symposium, Google and Search Engines, Privacy, Privacy (Electronic Surveillance), Privacy (National Security) Print This Post No Comments
posted by Anita Allen
Configuring the Networked Self is an intellectually exciting, engaging and challenging book. The directness and analytical clarity of the book are real virtues. Cohen seeks to employ insights from human capabilities theory, along with the language and tools of European post-modern thought to offer a better theoretical understanding of policy options for contemporary copyright and privacy law. The book is aggressively (and I would suggest, needlessly) anti-liberal; but liberalism is not the only theoretical approach Cohen finds deficient. In her view, feminism, law and economics, utilitarianism, and legal pragmatism are not fully adequate to meet the demands of information-age problem solving.
I have a number of concerns about the book. A global concern is that it targets a highly stripped-down “straw man” version of liberalism, reduced to three propositions. Much of the plausibility and appeal of liberalism is in the nuanced versions put forward by thinkers far removed from Immanuel Kant, Mill, and even John Rawls. If privacy law and policy suffers from wrong-headed liberal assumptions, this may not be the fault of the comprehensive theorists for whom revisioning classical liberalism is a most serious preoccupation. In this symposium, I will take the opportunity to offer a few comments focused on some of Professor Cohen’s views about privacy. First, I want to point out how congenial some of her perspectives are, even to a liberal like me. Second, I wish to point out what I believe are some interesting mis-directions in her analysis.
I must begin by pointing out that I am a self-professed progressively liberal feminist. My three books on privacy (Unpopular Privacy: What Must We Hide (2011); Why Privacy Isn’t Everything: Feminist Reflections on Personal Accountability (2003); Uneasy Access, Privacy for Women in a Free Society (1988) celebrate robust freedom of thought and action, of course, but also celebrate equality, accountability, tolerance, and mutually respectful relationships.
In my 1988 book I presented privacy as a broad “umbrella” concept encompassing seclusion, solitude, secrecy, confidentiality, modesty and reserve; I advanced a definition of privacy influenced by Ruth Gavison as “the inaccessibility of persons and information about them to the senses and surveillance devices of others.” I defended privacy as a value against feminist critics for whom privacy was synonymous with domination and subordination. I have not prescribed a definition of privacy tailor-made for the Internet era. However, my most recent work (the 2011 book) relates to the question of whether privacy protection should be left to individual choice, especially in light of the Internet age’s penchant for revelation. Earlier work (the 2003 book) considered the extent to which accountability demands “outweigh” privacy demands. Recent papers in the California Law Review (2010) and the Penn Journal of Constitutional Law (2012) concern whether privacy tort law and First Amendment privacy jurisprudence (respectively) serve progressively liberal socio-political goals relating to equality and respect for women, racial minorities, and LGBT communities. Read the rest of this post »
posted by Danielle Citron
In this post, I’m going to focus on the purchase that Cohen’s conception of the structural conditions of human flourishing beyond privacy and copyright. One of the book’s many contributions is how it illuminates the profound way that networked architectures can shape our self-development, relationships, and culture. Networked systems—governmental, private, and often combination of the two—provide, and deny, important opportunities. Configuring the Networked Self helps us appreciate that networked architectures are arbiters of access: to creative works, personal information, jobs, and an array of services. They know who we are and what we do. The comprehensiveness of dataveillance can be breathtaking and its control over our lives potentially complete. Systems sort, categorize, and make determinations for us and about us. Technical protocols determine the paths we get to take, the information that we see, and those we are denied. As Cohen’s book underscores, they “mediate our perceptions of the possible” and we often “take the world they present to us as given.”
These systems surround, and are wrapped around, us, shaping who we are and what we become. Search engines highlight information and advertising deemed relevant to our interests and bury others far down in search pages. Social media entities let us share some videos and pictures but flag others for removal. Automated systems count and miscount votes; they determine the amount of public benefits owed some individuals and terminate others’ Medicaid and food stamps. State-run fusion centers, staffed with federal and private sector partners, classify individuals as potential “threats” and flag insurance fraudsters. Although these systems shape practices of everyday life, users often can’t appreciate the extent to which our access to important opportunities has been granted or denied. As Cohen’s book rightfully notes, there’s a significant imbalance of information. These systems are black boxes to users, but they ensure that users are open books to the entities running them. Because people have no way to figure out what companies know about them, they can’t mobilize to protest it. They have no means to find out about the inner working of governmental systems, which are usually exempt from open sunshine requests as trade secrets or national security efforts. Yet the more that these systems are the backdrop of our daily interactions, the more we accept them. They have become the new normal.
As Ted Striphas noted in his post, the stories we tell ourselves can help us appreciate the relationships among law, culture, technology, and markets. So I would like to add a few stories that can help us work through the implications of Cohen’s conceptual apparatus. I’ll give one about tailored advertising and news, one about law enforcement, and one about public benefits. Read the rest of this post »
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.
Configuring the Networked Self Symposium: Reflections on the Self as Cultural Product, Never Fading Echoes and Digital Footprints
posted by Hector Postigo
I took the opportunity of having been asked to participate in this discussion to have my students read Configuring the Networked Self. So, recently I stood in front of my communication technology policy class, many of whom are soon to be official members of the “cultural industries,” and asked: who or what are your influences in the creative process? The class is a mixed bag of production students (sound and video for traditional and new media), writers (mostly for TV), film students, musicians and visual artists. One comedy writer smiled wryly up at me and said, “No one, I am entirely original.” So, I played along. “What do you do when you get home and are ready to relax in front of the TV?” He could have very well told me he does some yoga and then goes to bed, which would have scuttled the lesson plan. But, he cut me a break and said, “I watch as much of the Simpsons, Family Guy and Seinfeld as I can.” And so together we went, my class and I, on an exercise in self-reflexivity. It turns out that, as Julie Cohen surmises in her book, creativity begins with consumption, great amounts of it. That many creative processes involve imitation, copying, dis-assembly accompanied by creative reconstitution, phenomenologies, life histories, accidents of space and time and all the other ways in which we, all of us, begin to make sense of life. We talk to ourselves about life in the languages we have heard, seen and felt. And given a particular inclination and the proper tools, we talk to others about it too. From small, incidental retellings of lives, emerges a collective, multi-modal conversation about Life. Some (myself included) would call that culture.
Inclinations and tools, often discussed by other names, are the preoccupations of those thinking about human beings and technology. Technology not as a separate category within society, but as a re-constitution of it, and human beings, not as simply users/makers of tools, but awash in their architectures. My students are no exception. Because of their particular aspirations, they are acutely aware of their need, their desire, to speak in singular or mixed forms via media, extant or in need of invention. They hold within them the spirit of a sentence or the essence of a sound and only through its writing or recording or filming is that ephemeral form realized, their desire, if only partially, fulfilled. They continuously are bumping into things as they play with form and medium. They bump into discourses, they crash into history and sometimes are mired in medium.
But one does not need to be a formal student of production in mass communication to crash about in creative playgrounds. If you’ve ever made a mix tape (yes I’m that old) for a friend, family member or a significant other, you’ve done some crashing around of your own. You dismantled professionally made albums and reconstituted them. You’ve recorded and re-recorded, to capture with a higher fidelity your own musical narrative that retells a story, that remembers, that relives.
Importantly, our creative inclinations are not just a means through which we may configure mass culture to tell our personal story. Creativity is a pathway to our identities. We craft identities (through practice and discourse), present those identities to the world (again through practice and discourse), and then respond and adapt. The self, in many ways, is the foundational, creatively crafted cultural product, a mash-up made out of life worlds, personal histories, symphonies, and Michael Bay films.
Decentering creativity and repositioning it within a situated epistemology is an important contribution from Configuring the Networked Self and opens up the possibility of talking about it (creativity) not as an ingredient for some mythical creative genius but as a universally human, everyday practice. In the microcosm of you, me and my neighbor, Bob, and how we might creatively come together to figure out who we are, lies the key to seeing legal structures such as copyright, not only as economic policy regulating a market in the expression of ideas, but as powerful cultural policy that cross cuts from Time Warner, through my students, down to little old me, my neighbor Bob, and you, the reader. At a very basic level, if communication is necessary to iteratively and creatively configure the self, then laws and technologies that structure means of communication/production implicate our ability to fully realize our identities. And such laws should be assessed on those terms primarily. Copyright law may not have started as cultural policy [a cultural history might tease that out] but has become so as it has penetrated deeper into human communication and its tools.
This perspective has some important consequences. It may, for example, be a stepping-stone in crafting a legitimating epistemology for “creative rights.” The free culture movement, the digital rights movement and the free software movement all seem to circle around such a discourse. And it may also expand how access to knowledge proponents talk about the outcomes access. Creative rights imply disassembling, copying, and reconstituting mass culture and unique phenomonologies for ourselves and others not only as a key for cultural vitality but as a key to the formulation of identity.
As an STS and communication scholar, some questions regarding technology remain ripe for exploration. Creatively configuring identity through communication implies an audience, communities, individuals, texts to serve as sounding boards that may reinforce or reject, that may push away or welcome. The means for reaching those communities and for having them reach back are varied. For an American teenager that might mean joining a baseball team, taking a poetry class, playing video games with friends, hanging out at the local park, joining Facebook, or posting on YouTube or Twitter. Often these architectures are spoken of as separate, but they are intertwined and reach a number of sometimes but not always interconnected reference groups. They are also means of mass communication where single individuals reach their many networks and those networks reach back. To what degree identity configured through a network (not necessarily in a network) is shaped by the various technological architectures of platforms, protocols, and affordances designed to be conduits for personal creativity remains largely black boxed. Julie discusses transparency as a standard, but what I mean here is a transparency of impact on people and their practices. Can we know the adjustments and anthropological balancing acts that those moving identity through an ICT network must perform in order to comply to, challenge and re-constitute architecture?
Along with calls for a change in epistemologies or different regulatory mandates that allow for expanded protected spaces for creativity and identity, I wonder if it is possible to imagine a set of elegant hacks (both social and technological) that create systems based on alternative epistemologies. I’ve always thought creative commons (CC) was such a system. Critiques not withstanding, CC is a neat bit of ju-jitsu where the logic of private ordering and market organization are placed on the foundations of open source/free software ideologies. Under that frame, technological systems traditionally spoken of as “hacks” or “circumventions” are remapped and consistent with the underlying “contract” between creator and user and even the meaning of those terms shifts and is ultimately blurred. I think an analog in privacy still remains to be imagined. Perhaps a user initiated remapping of privacy enhancing technologies onto existing platforms like Facebook or the like? Or a form of activism that disrupts network owners’ hold on data when they capture and know (or think they know) identity on their platforms; a “semantic discontinuity,” to use a concept from the book, initiated and imposed by users. We cannot ignore the role that technologies, that hacks and circumventions, for example, have had on the discourse of creativity and digital networks. In many ways they are the material architecture of that discourse. Much of what has realized and influenced the theoretical thinking on user-centered views of culture and its production came hand-in-hand with hacks that established architectures that made the theory a narrative rooted in practice. Can we imagine the same for privacy?
posted by Julie Cohen
Orin Kerr’s comment on Deven’s post asked for a short summary. Here’s a one-paragraph abstract to get you started. The book is available at my website in a Creative Commons version, so if the abstract looks interesting you may want to skim the first chapter to get a better sense of the argument and the structure of the book.
Configuring the Networked Self explores the relationships between copyright, creativity, and culture, between surveillance, privacy, and subjectivity, and between network architecture and social ordering, and through those explorations develops a unified framework for conceptualizing the social and cultural effects of legal and technical regimes that govern information access and use. The book asks the sorts of questions with which law traditionally has concerned itself (what regime of information rights is just, and why), but it emphasizes a set of considerations that legal thinking about those issues has tended to marginalize. It argues that legal scholarship on the networked information society has gone astray by positing simplistic models of individual behavior derived from the commitments of liberal theory, rather than from reality. A wise regime of information law and policy should focus, instead, on the ordinary rhythms and routines of everyday practice. In particular, it should pay special attention to the connections between everyday practice and play and to the ways in which culture and subjectivity emerge from the interactions between the ordinary and the unexpected. Finally, the book identifies a set of reform principles for information law and policy that moves beyond “access to knowledge” to include two additional principles. A just regime of information law and policy should guarantee an adequate level of operational transparency about the ways that networked information processes and devices mediate access to information and services. In addition it should promote regulatory and technical architectures that are characterized by semantic discontinuity, in order to create and preserve spaces within which the play of everyday practice can move.
1) Do folks find the theoretical framework (mediated perception + everyday practice + play) useful? Useful to an extent but needing more … what?
2) Ditto for the reform principles (A2K + operational transparency + semantic discontinuity). I’m particularly interested in reactions to the last one, which likely heads in a counterintuitive direction as far as technologists are concerned. At some point it struck me that part of the point of the book was to call out and name that attribute of the old analog world, to force a conversation about whether and how much we ought to prize it.
Thanks to all for your willingness to participate!
posted by Deven Desai
Julie Cohen’s Configuring the Networked Self is different and signals that the next era of tech policy is upon us. The explosion of books about the Internet tracks the explosion of, well, the Internet. Could there be a bubble here too? Are most books simply restating and rehashing arguments from years ago? Probably. Cohen’s book, however, points the way to the next questions about not just the Internet, but how we structure the next twenty to forty years of society. She asks that we look at the state of not just networked technology, but the economy, law, and society that has emerged, how we justify it, and what it should look like going forward. Recent work by Barton Beebe, Maggie Chon, Brett Frischmann, Frank Pasquale, Daniel Solove, and Madhavi Sunder, makes me confident that the new era is here and work in it is growing. Rather than staying with the silos of the past fifteen years, this new inquiry looks to how the system works and probes whether society is reaping the benefits at large. Works like Code, The Future of the Internet, and The Wealth of Networks make important contributions to understanding and justifying certain visions of the Internet/Tech society. I believe, however, that the moment for those explorations is waning. Of course the debates regarding IP protection, open Internet, etc. will continue and there are important near-term battles there. The most pressing area for scholarship and society at large is what comes next?
Talk of innovation and what that means is rather staid and redundant. Leave X the way it is or all will cease. No. Stop X or a once shining industry will die (and you won’t get the things you thought you loved). Back and forth the players go. A closer look shows that they are fighting about their piece of the rapid growth pie. No one seems to look at exactly what innovation is at stake (is it breakthrough or tinkering and applying with a major one?), where capital is heading (is it rushing after the heady returns of early stage industries or fueling production and strong, reasonable rates of return), and how the innovation spreads wealth across society (are the benefits starting to reshape so many industries that a second wave of returns and improvements revitalizes older industries such that the middle class grows?). No one, except, Carlotta Perez and her contemporaries. They investigate the Schumpeter model but go further. Perez makes the strong case that after a technology reaches a peak, there is a crash (or two), and then the real action begins. Society must look to regulation and other mechanisms so that the true golden age arrives, one where the tech wealth spreads and production capital is the order of the day. Note that while that happens the next big tech breakthrough is likely lurking in a lab somewhere and waiting to pop out and shift the world once more.
Cohen’s book comes at the peak of the tech revolution roughly started in 1971 with the birth of the microprocessor, and is a vital resource for the turning point at which we are. I suggest that Cohen and the new wave of tech scholars looking to Sen and Nussbaum for a capabilities approach to tech policy and/or questioning a purely market-based analysis of the issues, may be understood as demanding that we get our house in order. When Cohen calls out that privacy and copyright suffer from similar conceptual problems and argues for a new way to see how individuals’ capabilities can be enhanced, she offers a claim about how to turn the tech revolution from benefiting a small, centralized few to improving the lot of the many. Perez admits that each tech cycle has somewhat specific logics and solutions. Cohen’s situated user, her critique of the specific financial system and call for sustainable development, and acknowledgment of the messy nature of culture track Perez’s insights. In each previous revolution, the turning point arrived and society constructed the way forward that accounted for the specifics of the technology as a broad matter for individuals, addressed failures in capital and labor markets, and was subject to certain cultural and political realities of the time. Configuring the Networked Self is a serious volley against remaining stuck in the recent past. In it, Cohen demands that we look to hard questions and honest insights about the system at large. She is not complacent about the future either. Instead, she makes a case for how we can and should proceed. Like all good scholarship, the book offers ideas to be tested and new questions to pursue. So read the book and let’s get to work.
These are my views. Not Google’s. In other words, attribution to my employer is foolish.
posted by Danielle Citron
This week, Concurring Opinions is hosting an exciting array of thinkers to discuss Julie Cohen’s important new book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press 2012). Cohen’s work on copyright, privacy, and cyber law has been extraordinarily influential, shaping and challenging how we think about creativity, surveillance, and freedoms essential to flourish in a networked age. (Here is a video of Cohen talking about the book at Harvard’s Berkman Center). We are thrilled to have Professor Cohen aboard, and thank our participants for joining the discussion. Read the rest of this post »
posted by Danielle Citron
During the week of March 5, we’re going to hold an online symposium on Julie Cohen’s important and engrossing book Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale University Press). As Rebecca Tushnet noted at a celebration of Julie’s book held at Georgetown Law School (see here for her post on the event), Cohen “challenges us to imagine better: understand culture’s power and make policies that both acknowledge and attempt to work with that power.” Some of what appealed to Dan Solove is the book’s exploration of privacy and creativity together, with all of their nuances. As Dan explained, “copyright and privacy both concern control over information; tension because scholars who argue for limits on copyright are often arguing for more protection for privacy—less control/more control over information. Is there a coherent way to argue for less copyright/more privacy? Cohen’s work establishes the normative foundations for that.” One of my favorite contributions is the book’s illumination of networked architecture’s impact on human flourishing and her development of the Capabilities Approach to address pressing challenges to the practice of everyday life.
Concurring Opinions is thrilled to welcome an all-star group of scholars to lead the discussion, including the author Julie Cohen:
In the meanwhile, get your copy of the book and mark your calendars!