Configuring the Networked Citizen

Abstract

Among legal scholars of technology, it has become commonplace to acknowledge that the design of networked information technologies has regulatory effects. For the most part, that discussion has been structured by the taxonomy developed by Lawrence Lessig, which classifies -code‖ as one of four principal regulatory modalities, alongside law, markets, and norms.1 As a result of that framing, questions about the applicability of constitutional protections to technical decisions have taken center stage in legal and policy debates. Some scholars have pondered whether digital architectures unacceptably constrain fundamental liberties, and what -public‖ design obligations might follow from such a conclusion. Others have argued that code belongs firmly on the -private‖ side of the public/private divide because it originates in the innovative activity of private actors.In a forthcoming book, I argue that the project of situating code within one or another part of the familiar constitutional landscape too often distracts legal scholars from more important questions about the quality of the regulation that networked digital architectures produce.2 The gradual, inexorable embedding of networked information technologies has the potential to alter, in largely invisible ways, the interrelated processes of subject formation and culture formation. Within legal scholarship, the prevailing conceptions of subjectivity tend to be highly individualistic, oriented around the activities of speech and voluntary affiliation. Subjectivity also tends to be understood as definitionally independent of -culture.‖ Yet subjectivity is importantly collective, formed by the substrate within which individuality emerges. People form their conceptions of the good in part by reading, listening, and watching-by engaging with the products of a common culture-and by interacting with one another. Those activities are socially and culturally mediated, shaped by the preexisting communities into which individuals are born and within which they develop. They are also technically mediated, shaped by the artifacts that individuals encounter in common use.The social and cultural patterns that mediate the activities of self-constitution are being reconfigured by the pervasive adoption of technical protocols and services that manage the activities of content delivery, search, and social interaction. In developed countries, a broad cross-section of the population routinely uses networked information technologies and communications devices in hundreds of mundane, unremarkable ways. We search for information, communicate with each other, and gain access to networked resources and services. For the most part, as long as our devices and technologies work as Cohen, Configuring the Networked Citizen 2012 2 expected, we give little thought to how they work; those questions are understood to be -technical‖ questions. Such questions are better characterized as sociotechnical. As networked digital architectures increasingly mediate the ordinary processes of everyday life, t...

‘Hypernudge’: Big Data as a mode of regulation by design

“…As Julie Cohen observes, within the liberal tradition, the 'self' as legal subject, has three principal attributes: (1) the self is a definitionally autonomous being possessed of liberty rights that are presumed capable of exercise regardless of context; (2) the legal subject possesses the capacity for rational deliberation and this capacity too is detached from contexts, situated within the tradition of Enlightenment rationalism in which the existence of universal truths amenable to rational discourse and analysis is presumed; and (3) the selfhood that the legal subject possesses is transcendent and immaterial -it is distinct from the body in which the legal subject resides (Cohen 2012). This, she argues, results is an emphasis on individual consent and a conception of privacy harm that is both economic and individualized so that the 'distress' associated with interference attracts little monetary compensation (Cohen 2012;Rauhofer 2015). …”

“…through the lenses that our artefacts create (Verbeek 2006). As a result, networked information technologies directly configure citizens themselves, actively shaping the relationship between humans and their world, and the way in which they perceive and understand themselves (Cohen 2012).…”

“…This paper focuses on how industry is harnessing Big Data to transform personal digital data into economic value, described by one leading cyberlawyer as the 'latest form of bioprospecting' (Cohen 2012). Although the term 'Big Data' is widely used, no universal definition has yet emerged.…”

“…Big Data is essentially shorthand for the combination of a technology and a process (Cohen 2012(Cohen : 1919.…”

“…The process involves mining data for patterns, distilling the patterns into predictive analytics, and applying the analytics to new data. Together, the technology and the process comprise a methodological technique that utilises analytical software to identify patterns and correlations through the use of machine learning algorithms applied to (often unstructured) data items contained in multiple data sets, converting these data flows into a particular, highly data-intensive form of knowledge (Cohen 2012(Cohen : 1919. A key contribution of Big Data is the ability to find useful correlations within datasets not capable of analysis by ordinary human assessment (Shaw 2014).…”