From 'Mining the Networked Self' by Tal Zarsky in (2012) 6
Jerusalem Review of Legal Studies 120-136, a
discussion of Julie Cohen's
Configuring the Networked Self: Law, Code and the Play of Everyday Practice.
Cohen sets out to fulfill a challenging and difficult task—formulating an overarching theory which will enable the understanding and critique of the emerging information environment. This ambitious project sets out to address three themes that are central to almost any discussion or analysis of information law and policy: digital copyright, information privacy, and network architecture. Research projects of such scope and complexity are rare. The author correctly observes that scholarship devoted to every one of these issues is heading down different paths. Thus far, scholars writing in every one of these respective fields allowed themselves to neglect the other two important themes, while focusing on what they believed to be an autonomous analytical unit.
This apparent disconnect in the literature is quite unfortunate. As Professor Cohen explains, scholarly neglect is leading to unacceptable outcomes. Such shortcomings are only visible when obtaining a very broad perspective of the entire realm of academic discussions—a perspective Cohen's work enables. This perspective reveals that when turning to separately address every one of the three themes mentioned, scholars addressing today's information environment rely upon similar basic philosophical frameworks (such as an economic analysis or the principles of the liberal state). Yet their theoretical conclusions and the policy recommendations that follow from them might turn out to be extremely different from each other, regardless of the common ground they hold. Cohen convincingly argues that as scholarship in the field of information law is maturing, scholars should no longer be allowed to overlook this systematic flaw. Put differently, when confronted with critiques that their work and its underlying assumptions carry problematic implications when applied to other central themes of information law, scholars may no longer respond: “this is merely an IP/privacy/cyberlaw project – I need not deal with the other two elements here – that is someone else's problem.”
In “Configuring the Networked Self,” the author demonstrates that establishing a coherent theory that touches upon the three core issues of information law is an achievable, yet very difficult task. Professor Cohen sets forth such a theory, which is premised on the notion of “play”—“the modality through which situated subjects advance their own contingent goals, constitute their communities, and imagine their possible futures.”3 The author notes several requirements which are crucial to assure that a sufficient level of “play” is available to members of society—elements which pertain to all three themes of information law detailed above. One such requirement calls for allowing individuals to maintain a limited realm of solitude to develop their subjective being. A second important requirement calls for assuring that individuals are provided with a basic level of transparency. Cohen describes this complex term as an understanding of how mechanisms (be them regulatory, social or technological) work, so that the affected individuals can interact with them (and therefore, with each other) effectively. The author explains this theory in great length, grounding it in various fields of knowledge and finally demonstrating how it could be translated into policy recommendations. I will revisit the theory’s two central requirements—transparency and the realm of solitude4—throughout this short article.
