Julie E. Cohen, ‘Between Truth and Power: The Legal Constructions of Informational Capitalism’ – Rev
Your legal concepts of property, expression, identity, movement, and context do not apply to us. They are all based on matter, and there is no matter here.
—John Perry Barlow, “A Declaration of the Independence of Cyberspace”
Julie E. Cohen’s book ‘Between Truth and Power’ derives its title from that of a small pamphlet “Speak Truth to Power”, circulated by intellectual leaders of the Quaker faith in 1955 as the Cold War military buildup gathered momentum. The pamphlet advocated a peaceful resolution. In the same way, this book offers a detailed look at how the rise of powerful information intermediaries operates with the active assistance of legal, regulatory, and political systems and how we can change it through the social movement.
The chapters analyse processes of legal-institutional transformation on two complementary and mutually reinforcing levels. The first part of the book discusses the level on which legal-institutional transformation is occurring involving basic understandings of legal entitlement. Chapter 1 describes the increasing virtualization and datafication of important economic resources and traces the emergence of the platform as the core organizational logic of the informational economy. Chapter 2 identifies the enabling legal construct that underwrites new techniques of personal data harvesting and processing and explores its doctrinal, architectural, and policy entailments. Chapters 3 and 4 move beyond appropriation of resources to consider other patterns of entitlement that involve accountability, immunity, authority, and obligation.
The second part analyses the level on which legal-institutional transformation is occurring involving the structure and operation of regulatory and governance institutions. Chapter 5 considers patterns of change in legal processes for dispute resolution, including and the emergence of new, explicitly managerial conventions for routing different kinds of disputes for different kinds of processing. Chapter 6 shifts the focus to the regulatory state, exploring the ways that informationalization of economic activity has both disrupted long-established regulatory constructs and elicited new, neoliberalized mechanisms for regulatory oversight. Chapter 7 investigates the emergence of network-and-standard-based legal institutional arrangements for transnational governance. Chapter 8 explores the widening mismatch between information-economy threats to fundamental human rights and institutions dedicated to protecting and preserving those rights.
The central argument of the book is that as our political economy transforms through the development in the technological sphere, our legal institutions are undergoing transformation too, and the two sets of processes are inextricably related. The author argues that technology is not a monolithic, irresistible force. Networked information technologies inevitably will alter, and are already altering, the future of law, but not because there is any single, inevitable arc of technological progress. The reason, rather, is very nearly the opposite: Information technologies are highly configurable, and their configurability offers multiple points of entry for interested and well-resourced parties to shape their development. To understand what technology signifies for the future of law, we must understand how the design of networked information technologies within business models reflects and reproduces economic and political power.
For Cohen, propertized data is a new development, and transactions on online platforms enable it. We’re now living within informational capitalism, where we are no longer the consumer, but a resource. The driving ideology of this transformation is neoliberalism, which asserts that not only should market-based forces replace government where possible but that efficiency and entrepreneurialism should be brought into government and especially law.
What is more, the law is not an immovable object. Legal scholars who work on information policy have been intensely concerned with questions about how existing doctrinal and regulatory frameworks should apply to information, algorithms, technical protocols, and online behavior, perhaps undergoing some changes in coverage or emphasis along the way. They have asked, in other words, how the law should respond to the changes occurring all around it. For the most part, they have not asked the broader, reflexive questions about how core legal institutions are already evolving in response to the ongoing transformation in our political economy—questions, in other words, not about how the law should apply to information-economy disputes, but rather about how both information-economy disputes and new informational capabilities are reshaping the enterprise of law at the institutional level. To Cohen, that is a mistake. Law is one of the moving parts, and it is already responding. Legal institutions too offer multiple points of entry for economic and political power, and as they are enlisted to help produce the profound economic and socio-technical transformations that we see all around us, they too are being changed. Struggles to shape the patterns of information flow are seeking out new modes of recognition and accommodation within the legal system. Slowly but surely, that process is restructuring the legal system itself, altering the substance and interpretation of fundamental legal guarantees.
One of the most interesting issues raised in Cohen‘s book is the notion of a public domain in data. The way all the companies collect our data depends on the legal concept of the public domain. Through a brilliant comparison with the enclosure movement that drove the first great transformation in England, Cohen shows that companies, having discovered an ungoverned public resource—our personal data—then aggregate it and declare it their own intellectual property. They do so with the help of standards bodies, like t the Federal Trade Commission, which addressed the privacy/ownership issue in data by simply showing us “privacy policies” that force us to agree to share our personal data.
Another big issue raised in this book surrounds the intellectual property and information ownership. Cohen argues that today, ownership of information-age resources and accountability for information-age harms have become pervasive sources of conflict, and different kinds of change are emerging: new claims about entitlement and accountability; new procedural devices for vindicating (or declining to vindicate) those claims in litigation; new obligations relating to financial stability, data protection, and network management; and many other. In many cases, those changes are hotly contested. We are witnessing the emergence of legal institutions adapted to the information age, but their form and their substance remain undetermined. What is more, tech corporations have learned the value of neoliberal governance in that sphere. They have weaponized freedom of expression, including making the marketplace of ideas all about supply and demand. Cohen notes that they argue for their own right to expression while also passing responsibility for it to third parties on their platforms. They make virtue claims for innovation, which appeal to neoliberal regulators. They make backdoor deals with governments, while Citizens are easily ignored or suppressed.
Cohen draws on an extraordinary range of theoretical literature, from political science, economics, and communications, which is not very common in legal writings, Also, she doesn’t just invoke them but puts their ideas to work. Her discussion of freedom of speech is full of references to the problems surrounding Wikileaks and the actions of Assange. Finally, when she talks about the 2008 financial crisis, she has such a deep understanding of the reasons for it happening, that not many economists do.
Like other scholars who can grasp enormous complexities, Cohen struggles to make them easily accessible. Her writing is abstract and dense, and even though it is very logical, readers can sometimes find themselves rereading the same page several times because it is hard to understand how the reasoning got there. In the same chapter, the author can discuss the past, the present, and the future of the legal industry, of economy, of different political states. For an unprepared reader, it can get quite tiring to give full attention to the quickly-moving thought process of the author. What is more, most of the book is based on the legal system of the USA with occasional mentions of other countries' legislations, which might make it hard for some readers with no previous knowledge to follow.
Nevertheless, what is worth mentioning is the brilliant language used by the author. Cohen is not afraid to use unusual expressions, which are easy to understand, yet they animate the text. Some examples might include using ‘mushroomed’ in the sense of growing fast or ‘balkanization of the internet’ – meaning the fragmentation of it. What is more, Cohen loves slightly noticeable irony, especially when talking about tech giants: when she discusses Goggle, she calls it ‘Silicon Valley darling’ or she refers to Facebook as ‘new kid on the block’.
To conclude, this book can serve as a great breakthrough in people’s understanding of how we got to the stage where tech companies are in a position of unprecedented control over ordinary realities in all its aspects but this book can also provide us with some ideas of how to move forward through social movements. For the author, the only way to change the situation is through public demand governance that honours collective rights.