ISDS And the Australian Social Contract

'Australia's embrace of investor state dispute settlement: a challenge to the social contract ideal?' by Thomas Faunce in (2015) 69(5) Australian Journal of International Affairs 595-609 explores

the origins of investor-state dispute settlement (ISDS) treaties and their implications for the Australian social contract. This analysis includes how and why ISDS emerged in NAFTA, was rebuffed with the failure of the Multilateral Agreement on Investment (MAI), and became incorporated into most subsequent bilateral US trade and investment agreements. The paper considers Australia's exposure to ISDS—first through using it in bilateral investment agreements in nations with inadequate governance mechanisms to support the rule of law, then turning against it when a multinational tobacco company tried to use the mechanism to overturn scientifically endorsed, democratically approved and constitutionally validated tobacco plain packaging measures. The paper concludes by exploring the hypothesis that an alternative governance vision can be achieved in which the system of investment arbitration and trade law is made coherent with presumptively more democratically legitimate normative systems such as constitutional and international law. 

 Faunce comments

The idea of social contract, a tacit agreement between the members of a community to develop principles that are equally applicable to all, and that assist in governing their conduct predictably and certainly, represents a jurisprudential ideal at the core of not just representative democracy, but the wider process of assisting humans to dedicate their lives to the individual and social achievement of virtues such as truth, justice and (more recently) environmental sustainability. Rawls in his acclaimed Theory of Justice expressed this view through a thought experiment in which the original persons establishing a society do so by developing principles about justice that are universally applicable because they are made behind a ‘veil of ignorance’ as to the specific characteristics of individual citizens (Rawls 1976). For those who embrace the progressive, natural law implications implicit in such a theory, in the majority of nation states including Australia, one the chief manifestations of this social contract is the Constitution and the legislative and judicial framework of norms dependent upon it.

In this paper I explore the idea that the social contract ideal is currently under profound pressure from the rise and proliferation of Investor State Dispute Settlement (ISDS) treaties. These treaties give exclusive rights to multinational corporations to challenge any national legislation that impacts on their profit-making expectations, before corporate-friendly panels. Historically, the Australian government has maintained a firm line against negotiating such treaties with other developed countries, refusing to include ISDS procedures in the Australia-US Trade Agreement a decade ago. Since then, however, it has agreed to the inclusion of an ISDS chapter in its bilateral deal with South Korea, and now appears to be actively supporting the adoption of far-reaching ISDS commitments as part of the Trans-Pacific Partnership Agreement (TPPA) negotiations.

In the pages that follow I examine where ISDS came from, and explain why its introduction to Australian governance systems should be of concern for those wishing to support in that society virtues such as justice and environmental sustainability. I begin by considering the historical and ideological origins of ISDS, scrutinising the notion that it should have limited applicability to societies with an established rule of law (for example, where the Constitution prohibits nationalisation of assets except on fair terms of compensation). I then examine the varied interactions of Australian governments with ISDS, in bilateral investment agreements with regional neighbours lacking established rule of law mechanisms, in the Australia-United States Free Trade Agreement (AUSFTA), in bilateral trade deals with Korea and Japan, and then in the Trans Pacific Partnership Agreement (TPPA). I conclude by exploring the hypothesis that an alternative governance vision can be achieved in which the system of investment arbitration and trade law is made coherent with presumptively more democratically legitimate normative systems such as constitutional and international law.

Refugees

''Unable to Return' in the 1951 Refugee Convention: Stateless Refugees and Climate Change' by Heather Alexander and Jonathan Simon in (2015) 26(3) Florida Journal of International Law comments 

 it is not only a point of literal construction, but also inherent in the object and purpose of the 1951 Refugee Convention, that displaced stateless persons unable to return to their countries of former habitual residence may be eligible for refugee status even if unpersecuted. 'Unable to return' as it occurs in the clause following the semi-colon of 1(A)2 of the 1951 Refugee Convention must be understood as a term of art subject to appropriate canons of construction in its own right. Its construal must therefore be more restrictive than many commentators have suggested, though not so strict as to preclude all but persecuted persons. Then argues that, as a case study, those who are displaced from their island nations because those nations have submerged beneath the sea will count as 'unable to return' in the relevant sense, and so will qualify for Convention refugee status, if they count as lacking a nationality, i.e. as stateless.

Trust in Privacy Law

'Taking Trust Seriously in Privacy Law' by Neil M. Richards and Woodrow Hartzog comments 

Trust is beautiful. The willingness to accept vulnerability to the actions of others is the essential ingredient for friendship, commerce, transportation, and virtually every other activity that involves other people. It allows us to build things, and it allows us to grow. Trust is everywhere, but particularly at the core of the information relationships that have come to characterize our modern, digital lives. Relationships between people and their ISPs, social networks, and hired professionals are typically understood in terms of privacy. But the way we have talked about privacy has a pessimism problem – privacy is conceptualized in negative terms, which leads us to mistakenly look for “creepy” new practices, focus excessively on harms from invasions of privacy, and place too much weight on the ability of individuals to opt out of harmful or offensive data practices.

But there is another way to think about privacy and shape our laws. Instead of trying to protect us against bad things, privacy rules can also be used to create good things, like trust. In this paper, we argue that privacy can and should be thought of as enabling trust in our essential information relationships. This vision of privacy creates value for all parties to an information transaction and enables the kind of sustainable information relationships on which our digital economy must depend.

Drawing by analogy on the law of fiduciary duties, we argue that privacy laws and practices centered on trust would enrich our understanding of the existing privacy principles of confidentiality, transparency, and data protection. Re-considering these principles in terms of trust would move them from procedural means of compliance for data extraction towards substantive principles to build trusted, sustainable information relationships. Thinking about privacy in terms of trust also reveals a principle that we argue should become a new bedrock tenet of privacy law: the Loyalty that data holders must give to data subjects. Rejuvenating privacy law by getting past Privacy Pessimism is essential if we are to build the kind of digital society that is sustainable and ultimately beneficial to all – users, governments, and companies. There is a better way forward for privacy. Trust us.

Legal Automation

'Four Futures of Legal Automation' by Frank A. Pasquale III and Glyn Cashwell in (2015) 63 UCLA Law Review Discourse 26-48 comments

Simple legal jobs (such as document coding) are prime candidates for legal automation. More complex tasks cannot be routinized. So far, the debate on the likely scope and intensity of legal automation has focused on the degree to which legal tasks are simple or complex. Just as important to the legal profession, however, is the degree of regulation or deregulation likely in the future.

Situations involving conflicting rights, unique fact patterns, and open-ended laws will remain excessively difficult to automate for an extended period of time. Deregulation, however, may effectively strip many persons of their rights, rendering once-hard cases simple. Similarly, disputes that now seem easy, because one party is so clearly in the right, may be rendered hard to automate by new rules that give now-disadvantaged parties new rights. By explaining how each of these reversals could arise, this Essay combines technical and sociological analyses of the future of legal automation. We conclude that the future of artificial intelligence in law is more open ended than most commentators suggest. ...

The first scenario, a Vestigial Legal Profession, can be expected in legal practice areas now serving industries that continue to deregulate. For advocates of disruptive innovation like Harvard Business School Professor Clayton Christensen, that is a consummation devoutly to be wished. Christensen’s acolytes in the legal academy tend to see much of law as little more than a transaction cost imposed on job-creating businesses. From their perspective, automation both reflects and reinforces trends toward laissez-faire deregulation. Simple, precise legal rules are easy to automate. As attorneys’ roles are increasingly taken over by machines, their social prestige declines—thus vitiating their ability to propose more complex or expansive regulatory regimes.

But what happens if artificial intelligence and regulation both advance? This scenario portends what French social theorist Gilles Deleuze called a “Society of Control;” namely, a world in which human action is increasingly managed and monitored by machines. As Peter Reinhardt recently observed, at firms like Uber and 99designs, “lines of code directly control real humans.” In government, too, software can effectively make determinations about who will be audited, who will receive benefits, or who will be denied access to a flight. It is possible to imagine whole areas of law relegated to computational implementation. For example, Lawrence Solum has posited (not endorsed) the development of an “Artificially Intelligent Traffic Authority (AITA),” which could “adapt itself to changes in driver behavior and traffic flow.” The system would be designed to “introduce random variations and run controlled experiments to evaluate the effects of various combinations on traffic pattern.” But the system would not be very forgiving of individual experimentation with, say, violating its rules. Rather, as imagined by Solum, “[v]iolations would be detected by an elaborate system of electronic surveillance” and offenders would be “identified and immediately . . . removed from traffic by a system of cranes located at key intersections.”

Solum uses this example to break down the usual distinctions between human and artificial meaning in the law, rather than as a policy proposal for the future of transportation. The scenario is just as useful to flag the inevitable legal and political aspects of automated law enforcement, even in an area as seemingly technical as traffic. Would the cranes posited in Solum’s hypothetical surgically remove protesters, like the Ferguson marchers, who blocked highways? Would anyone with an expired license or tags be plucked away as well — in a vision already half-realized by subprime lenders who stop cars remotely as soon as a payment is late?

Both the Vestigial Legal Profession and Society of Control scenarios may seem unduly futuristic—and indeed warrant skepticism. As the third scenario — Status Quo — suggests, it is entirely possible that legal automation will move forward far more slowly than many predict or expect. While the legal profession may decline in importance (if not in employment levels), it may not be nearly as susceptible to automation as other fields.

By contrast, robust growth in jobs for those with legal training would likely occur under a fourth scenario, called the “Second Great Compression.” Among economists, the Great Compression is the period from roughly 1947 to 1979 when income growth was roughly evenly distributed among quintiles. Since 1979, most income gains have gone to the top quintile, and within that group, trend toward concentration of income would take very high levels of legal regulation of enterprises, and a rebalancing of the relative power of the state and business to favor the enhanced autonomy of the former. Each trend in the Second Great Compression scenario would increase the power (and, likely, the earnings) of attorneys.

By describing these trends in greater detail below, this Essay illuminates the relative plausibility of each scenario. It takes seriously the possibility of both self-fulfilling and self-preventing prophecies. Both Status Quo and Second Great Compression are likely to be more humane scenarios than Vestigial Legal Profession and Society of Control. This work is designed to make it more difficult for key policymakers to accept either of those high-automation scenarios uncritically. And if these substandard scenarios do indeed come to pass, at least the profession was warned in advance.

Indigenous Recognition

The WA Parliament has passed the Constitution Amendment (Recognition of Aboriginal People) Bill 2014 (WA).

The Explanatory Memo to that private members Bill states

Parliamentary legislation in other jurisdictions has been enacted, or is currently in passage through Parliaments, to provide constitutional recognition of Aboriginal Australians as the first peoples of our country.  

South Australia was the most recent State to recognise Aboriginal people in its State constitution through the Constitution (Recognition of Aboriginal Peoples) Amendment Bill 2012, which was introduced into the South Australian Parliament on 29 November 2012, passed on 5 March 2013 and assented to on 28 March 2013. The New South Wales Parliament introduced the Constitution Amendment (Recognition of Aboriginal People) Bill 2010 on 8 September 2010, passed the Bill on 19 October 2010 and received Royal Assent on 25 October 2010. Queensland introduced the Constitution (Preamble) Amendment Bill 2009 on 24 November 2009, passed it on 23 February 2010 and the Bill received assent on 25 February 2010. The first State in Australia to give constitutional recognition to Aboriginal people was Victoria, which introduced the Constitution (Recognition of Aboriginal People) Bill 2004 on 26 August 2004, passed the Bill on 4 November 2004 and it was assented to on 9 November 2004. At a Federal level, the Aboriginal and Torres Strait Islander Peoples Recognition Bill 2012 was passed by the House of Representatives on 13 February 2013 and was read into the Senate on 25 February 2013.  

This Western Australian Bill recognises that Aboriginal people are the original custodians of Western Australia and that the settlement by European people was done without consultation with those original inhabitants.  

Advice was sought from the Solicitor General in 2004 as to whether any legal consequences flowed from inserting these words into the Preamble of the Constitution Act 1889 and the advice was as follows:

I do not believe that an amendment to the preamble in these terms would have any significant legal consequences. I would see it as principally a statement of historical fact.

The advice from the Solicitor General of 2004 goes further:

In terms of its constitutional significance, it could only be relevant to the extent that it might be the foundation for some implied limitation on the legislative power of the Parliament. However, I find it difficult to see how any limitation of substance could be constructed from such a provision.

The Memo goes on to state -

This Clause provides an update to include Western Australia’s accession to statehood as a part of the federation of Australia. These words also contain the recognition of the Aboriginal inhabitants of Western Australia as the First Peoples of Western Australia and that they are also the traditional custodians of the land. The amendment also makes explicit that, through this Bill, Parliament seeks to effect reconciliation with Western Australia’s Aboriginal people.

The current Preamble states -

Whereas by the 32nd section of the Imperial Act passed in the session holden in the 13th and 14th years of the Reign of Her present Majesty 2 , intituled “ An Act for the better Government of Her Majesty’s Australian Colonies ”, it was among other things enacted that, notwithstanding anything thereinbefore contained, it should be lawful for the Governor and Legislative Council of Western Australia, from time to time, by any Act or Acts, to alter the provisions or laws for the time being in force under the said Act or otherwise concerning the election of the elective members of such Legislative Council, and the qualification of electors and elective members, or to establish in the said Colony, instead of the Legislative Council, a Council and a House of Representatives, or other separate Legislative Houses, to consist of such members to be appointed or elected by such persons and in such manner as by such Act or Acts should be determined, and to vest in such Council and House of Representatives, or other separate Legislative Houses, the powers and functions of the Legislative Council for which the same might be substituted; and whereas it is expedient that the powers vested by the said Act in the said Governor and Legislative Council should now be exercised, and that a Legislative Council and a Legislative Assembly should be substituted for the present Legislative Council, with the powers and functions hereinafter contained:  

Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, as follows: —

It is amended through insertion of -

And whereas the Legislature of the Colony, as previously constituted, was replaced through this Act with a Parliament, to consist of the Queen, the Legislative Council and the Legislative Assembly with the members of both Houses chosen by the people, and, as constituted, continued as the Parliament of the Colony until Western Australia’s accession as an Original State of the Commonwealth of Australia in 1901 and thereafter has been the Parliament of the State;  

And whereas the Houses of the Parliament resolve to acknowledge the Aboriginal peoples as the First Peoples of Western Australia and traditional custodians of the land, the said Parliament seeks to effect a reconciliation with the Aboriginal peoples of Western Australia:

Disability Discrimination

In Mulligan v Virgin Australia Airlines Pty Ltd [2015] FCAFC 130 the Federal Court of Australia Full Court (FCAFC) has found that the Federal Circuit Court of Australia misconstrued reg 256A of the Civil Aviation Regulations 1988 (Cth) in finding that the provision applied only to persons assisted by assistance animals who had visual or hearing impairment only, and excluded a passenger who had additional disabilities.

The judgment states

This appeal raises some important issues concerning the proper construction and application of various provisions in the Disability Discrimination Act 1992 (Cth) (DDA) and their interrelationship with various laws and instruments which affect civil aviation. A central issue is whether the respondent airline unlawfully discriminated against the appellant, who claimed to suffer from cerebral palsy which affected his vision and mobility, when the airline refused to allow his dog, Willow, to accompany him in the aircraft cabin

The FCAFC declared that the conduct of Virgin Australia Airlines Pty Ltd in refusing to allow an assistance dog accompany a passenger who suffered from cerebral palsy which affected his vision and mobility constituted unlawful discrimination under Disability Discrimination Act 1992 (Cth) s 24.

Virgin was ordered to pay damages by way of compensation to the appellant for the stress suffered as a consequence of its unlawful conduct during the period from at least December 2010 to at least September 2012 in the sum of $10,000 plus interest in accordance with s 51A of the Federal Court of Australia Act 1976 (Cth). Virgin was also ordered to pay the appellant’s costs of the proceeding below, the appeal, the amended notice of contention and the amended cross-appeal.

The Full Court, at [35], states that the reasons for the decision in the first instance judgment -

it may be noted, were given in an ex tempore judgment. It must necessarily be recognised that the attributes of different judges vary enormously and that appellate courts stand in a very different position to a trial court having a large volume of cases, such as the FCCA: M D Kirby, ‘Ex tempore Reasons’, (1992) 9 Australian Bar Review 93. In a case such as the present, however, where the factual findings to be made and the legal conclusions to be reached were not easy of resolution, it was perhaps surprising that the primary judge decided to deliver ex tempore reasons rather than to first pause for reflection. Any experienced judge may have hesitated – and, perhaps, avoided error.

That disquiet reflects [93] to [106] -

93. The primary judge’s reasons for judgment reveal numerous appellable errors.  

94. First, his Honour erred in proceeding on the basis that the Instruments were relevant to Mr Mulligan’s individual circumstances. It is explicitly stated in both Instruments that they were made under reg 256A(1)(b) of the CARs (i.e. not s 256A(2)). Accordingly, those Instruments applied only in respect of a person with a disability other than sight or hearing impairment who required a dog to assist the person to alleviate the effect of the disability. The limited scope of these Instruments is reinforced by the definition therein of “handler”, which is defined to mean “the person with a disability other than sight or hearing impairment who relies on the dog” (emphasis added). As the AHRC contended, any permission given by CASA under reg 256A(1)(b) has no work to do with respect to a dog as described in reg 256A(2). The primary judge’s erroneous belief that the Instruments were relevant and, indeed, determinative of the case was a fundamental error. That error permeated the entirety of the primary judge’s reasoning.  

95. Virgin Australia acknowledged that the primary judge erred in his interpretation of reg 256A(1) and (2) but it sought to defend the dismissal of Mr Mulligan’s application on other grounds which will be considered below.  

96. Secondly, the primary judge’s misconstruction of the Instruments and failure to appreciate the distinction between reg 256A(1)(b) and (2) led to the following further related error. Contrary to the primary judge’s findings in [11] and [12] of his reasons for judgment, reg 256A(2) is not properly characterised as being in “the nature of a defence”. We accept the AHRC’s submission that the effect of reg 256A(2) is that an operator is not prohibited from permitting a dog to travel in the cabin with a disabled person if the dog is a guide or an assistant to the disabled person (assuming that reg 256A(8) has no application). If, however, an operator refuses to carry such a dog and the circumstances specified in reg 256A(2) are otherwise satisfied, this may constitute unlawful discrimination under the DDA.  

97. Thirdly, the primary judge misconstrued reg 256A(2) in [13] of his reasons for judgment when he adopted an unduly narrow view in implying that, for that provision to apply, the person assisted by an assistance dog must have only a visual impairment or hearing impairment, with the consequence that the provision has no application if the person also has an additional disability (such as, in Mr Mulligan’s case, cerebral palsy).  

98. Regulation 256A deals with the carriage of animals in an aircraft. Only reg 256A(2) deals specifically with the carriage in the passenger cabin of an aircraft of a dog that accompanies a person with particular disabilities, namely a person who is visually impaired or hearing impaired, and the dog is a “guide” or an “assistant” to that person. We see no warrant in the language of reg 256A or in the object or purpose of that provision to confine its operation to circumstances where the person being accompanied by the dog must only be visually impaired or hearing impaired and not also have some additional disability, such as cerebral palsy. Plain words would be required to support the narrow construction adopted by the primary judge.  

99. It is convenient to note at this point that Virgin Australia contended that the phrase “a dog accompanying a visually impaired or hearing impaired person as a guide or an assistant” in reg 256A(2) should be construed to read a “guide dog” and an “assistant dog”. For reasons which are developed below, we do not accept that contention.  

100. Fourthly, the primary judge’s misconstruction of reg 256A(2) was accompanied by the following further errors. His Honour’s finding at [4] and [7] that the Instruments were “exhaustive” in relation to the circumstance in which Virgin Australia was permitted to carry a dog in the cabin was wrong. This finding fails to take into account the nature and effect of reg 256A(2) which, independently of reg 256A(1)(b), does not prevent an aircraft operator such as Virgin Australia from permitting a dog which accompanies a visually impaired or hearing impaired person as a guide or an assistant to be carried in the passenger cabin as long as the prescribed conditions are met. Furthermore, and equally significantly, it is evident that the primary judge’s view that the Instruments were exhaustive as to when Virgin Australia was permitted to carry a dog in the cabin resulted in the primary judge not turning his mind at all to the potential relevance of the issue whether Willow was an “assistance animal” within the meaning of s 9(2) of the DDA and, if so, how that affected the operation and application of reg 256A. It is difficult to understand why the primary judge did not address these important issues, not the least because it was expressly pleaded in [2] of the further amended statement of claim that, at all material times, Mr Mulligan had “an assistance animal” and reference was made to s 9(2)(a) and (c) of the DDA.  

101. Fifthly, as Virgin Australia also acknowledged, the primary judge erred in finding at [8] that the Instruments were a “prescribed law” for the purposes of s 47(2) of the DDA. His Honour stated in [9] that “prescribed law” is defined in s 2B of the AIA and that this “would clearly apply to the instrument, in this case issued by CASA”. That reasoning involves the following overlapping errors: (a) s 2B of the AIA does not define what is a “prescribed law” as such, rather it defines “prescribed” to mean “prescribed by the Act or by regulations under the Act”. Relevantly, this is a reference to a law prescribed by the DDA or by regulations made under the DDA, such as the DDRs. Section 132(2) of the DDA expressly refers to the power to make regulations for the purposes of s 47 of the DDA; and (b) more significantly, several laws are prescribed for the purposes of that provision in reg 2A and Sch 1 of the DDRs. Significantly, however, neither the Instruments nor the CARs are prescribed under either the DDA or the DDRs. Accordingly, they are not a “prescribed law” for the purposes of s 47(2) of the DDA.  

102. Sixthly, the primary judge proceeded on the basis it was common ground that each Instrument was a legislative instrument for the purposes of the LIA and he viewed that factor as relevant to his characterisation of the Instruments as “a prescribed law”. For reasons given above, the finding that the Instruments were a prescribed law was incorrect.  

103. The AHRC made detailed submissions which challenged the primary judge’s finding in [3] of his reasons for judgment that the Instruments were also a legislative instrument within the meaning of the LIA. Virgin Australia conceded in the appeal that the primary judge was wrong to proceed on the premise that the Instruments were legislative instruments and had force and effect in accordance with the LIA. Virgin Australia also accepted that this led the primary judge to conclude that, having regard to s 47(2) of the DDA, Pt 2 of the DDA could have no application in the present case.  

104. Having regard to s 5(2) of the LIA and guiding principles established in decisions such as RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855; (2001) 113 FCR 185, neither Instrument was a legislative instrument for the purposes of the LIA because: (a) neither Instrument altered the content of the law and, instead, they applied the law to a particular operator, namely Virgin Australia; and (b) neither Instrument was of general application and, instead, they applied only to Virgin Australia and conferred no rights or obligations on persons wishing to travel with assistance animals.  

105. Seventhly, the primary judge erred in interpreting and applying s 54A(5) of the DDA in finding in [15] that there was non-compliance with that provision by reference to the Instruments in that Willow was not trained and identified by an approved organisation. This error was consequential upon the primary judge’s erroneous findings that reg 256A(2) had no application and that the case fell to be determined solely by reference to the Instruments (which required inter alia that Willow be trained and accredited by an approved organisation).  

106. Eighthly, the primary judge’s finding at [16] that, having regard to the Instruments, unjustifiable hardship would arise if Virgin Australia were required to carry Willow in the cabin because this would “be contrary to the express confinement of permission identified in instruments (sic) and as such a potential offence”. This finding involved appellable error because the primary judge focused exclusively on what he regarded to be the effects and operation of the Instruments. He failed to direct his mind to the proper construction and application to the circumstances here of reg 256A(2) or s 9 of the DDA.

All data is credit data

‘“All Data is Credit Data,” or, On Close Reading as a Reciprocal Process in Digital Knowledge Environments’ by John C. Hunter in (2014) 5(2) Scholarly and Research Communication comments 

The new knowledge environments of the digital age are often described as places where we are all closely read, with our buying habits, location, and identities available to advertisers, online merchants, the government, and others through our use of the Internet. This is represented as a loss of privacy in which these entities learn about our activities and desires, using means that were unavailable in the pre-digital era. This article argues that the reciprocal nature of digital networks means 1) that the privacy issues that we face online are not radically different from those of the pre-Internet era, and 2) that we need to reconceive of close reading as an activity of which both humans and computer algorithms are capable. 

Hunter argues that

 The new knowledge environments of the digital age are often described as places where we are all closely read, with our buying habits, our location, and intimate details of our identities available to advertisers, online merchants, the government, and others through our use of the Internet. This is often represented as an imminent or achieved destruction of privacy in which governments and businesses learn about our activities and desires using means that were unavailable in the pre-digital era (e.g., Andrews, 2012; Lanier, 2012; Mayer-Schönberger, 2011). As Jaron Lanier (2012) puts it (rather apocalyptically) in You Are Not A Gadget: “The deep meaning of personhood is being reduced by the illusions of bits. Since people will inexorably be connecting to one another through computers from here on out, we must find an alternative,” adding that we should try “to be a person instead of a source of fragments to be exploited by others” (p. 21). Lanier’s contrast between “deep” pre-digital selfhood and the supposedly diminished subjectivity manifested on digital networks is common to many articulations of this loss of control. One legal scholar refers to our off-line subjective state as “people’s pre-existing autonomy,” and the Enlightenment discourse of individual rights that such language evokes is the basis for the privacy rights that are being threatened (Pagallo, 2011; Griffin, 2008). Another, by contrast, refers to our online manifestations as “second selves” or “digital doppelgängers” (Andrews, 2012, p. 45), again insisting on the belatedness and inferiority of our online presence when compared to our “real” material selves. The response to this perceived crisis is to call for more privacy safeguards to be built into search engines, online financial transactions, and the uses of data about individuals by the entities with which we interact (e.g., Pentland, 2009; Froomkin, 2000). More “privacy by design” is needed because “[p]rivacy is not something that appear[s] naturally online, it must be deliberately architected” (Castelluccia, 2012, p. 31; see also Lessig, 2013; Witte, 2013). Theis is the Internet as a new world, one that resembles a 19th century “Darkest Africa” in that it is both magical and in obvious need of the European Enlightenment model of civilization. 

Like nearly all forms of digital exceptionalism, the claim that the crisis of online privacy is totally unprecedented overlooks a dense, complex history that conditions the various responses to our online readability – in this case, a history of making people “readable” via their clothes, behaviour, bodily characteristics, physical locations, language, et cetera – which has coexisted very easily with Modernity’s construction of the “private individual” and individual rights. It will be the work of this paper to recall this history of close reading and to analyze how its tropes are being replicated in digital environments. 

Whether legally or culturally enforced, attempts to regulate people’s behaviour and appearance have always been a feature of Western culture. From ancient Roman restrictions on conspicuous consumption (Dari-Mattiacci & Plisecka, 2012) to early modern sumptuary laws (Hunt, 1996; Killerby, 2002; Raffield, 2002) and from gendered clothing norms to racial profiling (Meehan & Ponder, 2002), people have always been read and/or judged by their appearance, and have always been conscious of these omnipresent interpretations of their identity. The extensive historicist body of scholarship on performativity has shown how consciously and publicly we perform our gendered, national, sexual, and professional identities (e.g., Butler, 2006; Dent & Whitehead, 2002; Ehlers, 2012; Negra, 2006). And, as Marjorie Garber (among many others) has pointed out, it makes many ordinary people (not just governments and other elites) nervous when the people around them cannot be read and normatively categorized via visual clues (Garber, 1997). However privacy is construed or justified, the idea that we could not be anonymously scrutinized, interpreted, and/or unfairly judged by others prior to the advent of the Internet is risible. The binary opposition between our “real” selves and our online identities outlined above is thus just a lazy unexamined assumption. The question is why theorists of the digital world (like Lanier and Andrews) so often think that they need it – what is driving the urge to bracket our online lives from our “private” lives when life in the West has always been a balance between external forces (seeking to know, circumscribe, and control how we behave) and individual or communitarian responses to these forces? 

This article argues that the anxiety about being closely read in networked environments is not a response to a new technological threat, but the articulation of a heretofore impossible desire: the desire to read the world around us without leaving traces or being read in return. As N. Katherine Hayles (among others) has argued, digital technology has radically extended and transformed the concept of what it means to read (Hayles, 2012). The desire to read anonymously, as it were, is a result of a failure to accept the full consequences of this change. It is fostered by our bodily experience of traversing the Internet – because we do not directly experience ourselves being read and interpolated in the ways that occur in any material public setting, we wrongly assume that we are not (and should not) be “seen” online. It is also encouraged by the marketing materials for our networked digital devices, which dwell on our capacity to access data and not on the extent to which we necessarily become nodes in other people’s networks by doing so (Rainie & Wellman, 2012). As strong as this desire may be, however, it is also impossible: it is oblivious of the ways in which being read is a fundamental price for living in communities (as discussed above); it is fundamentally inconsistent with the reciprocal character of networked data environments (Manovich, 2001); and it is an important reason why the online privacy debate has been unable to establish itself properly. Reading (whether one interprets texts, passersby in a street, or social practices) has always been a socially embedded and reciprocal act – this is why one can buy Harry Potter novels with “adult” covers and Fifty Shades of Grey novels with anodyne covers; someone may be watching and judging, even as we while away the bus ride to work. The acts of reading that we most resent when they are applied to us in digital knowledge environments (i.e., interpretations of our spending or communication habits) are the products of our participation in networked environments. We need to relearn how the legal presumption of privacy in no way arrests or displaces the kinds of sumptuary, performative, and/or judgmental readings that have always marked social life – even when that life is online.