Haack

'The World and How We Know It: Stumbling Towards an Understanding' by Susan Haack in (2018) LXVII(196) Estudios filosóficos 549-61 comments

Haack’s main purpose is to spell out the key ideas — Innocent Realism, Laconicism, Critical Common-sensism, neo-classical legal Pragmatism — of the understanding of the world and our real but very imperfect knowledge of it that she has developed over the decades. She begins, however, by explaining what attitudes and predilections — especially, her distaste for false dichotomies — she brought to philosophy from the beginning, and what new ideas gradually evolved; and concludes with some wry reflections on the condition of professional philosophy today.

Haack states

 It has taken decades to build, and it’s still a work in progress. But I won’t dwell on the sometimes painful stretching and strengthening of intellectual muscles that was needed, or on all the dead ends, false starts, and wrong turns I took; instead, I’ll sketch some core themes of the understanding of the world, our place in it, and our always-fallible efforts to figure it out that was the result of these efforts. 

But perhaps, first, I should say a few words about the attitudes and predilections I brought to philosophy at the outset, and the new interests, methods, and ideas to which they led. From the beginning, I hoped to do useful, constructive work. But I never thought in terms of finding the one Big Idea that could form the basis of a philosophical system; and even when a problem proved beyond my powers at the time, I never doubted that there were genuine philosophical problems, or that they could eventually be solved — by someone, if not by me. From the beginning, too, I was very leery of anything pretentious or unnecessarily obscure; and temperamentally disinclined to jump on fashionable philosophical bandwagons. And — most, as it turns out, to the present purpose — I was always acutely aware of the dangers posed by ambiguities and false dichotomies. 

But the very young, very inexperienced philosopher of those early days had a long intellectual road to travel. Although Deviant logic and Philosophy of logics were unusually broad for their time, they were pretty thoroughly analytic in orientation; and their agenda was set largely by the work of Frege, Russell, Quine, Tarski, et al. Even a little later, when I started writing on epistemology, I still set out from familiar problems and familiar seams of literature. 

Prompted in part by my reading of the old pragmatists, however, I soon began to chafe against the limitations of the analytic approach in which I was trained, and the narrowness of the highly specialized, technical issues on which it focused. I began to notice serious ambiguities masked by Quine’s smoothly flowing prose and hard philosophical questions left untouched by Tarski’s ingenious formal results. I began to suspect that the reason the epistemological work with which I was struggling was bogged down in fruitless disputes was that everyone concerned took false dichotomies for granted. I grew bolder, braver, and more flexible: I recognized that, the analytic preoccupation with precision notwithstanding, it was sometimes helpful to begin with a vague but plausible idea — provided you could then make it less vague without at the same time making it false; I began to think in terms of continuities as well as distinctions; I became readier to say, “no, sorry, I wouldn’t start from here; we need a different point of departure altogether.” And naturally, as I trod new paths, I found much higher ground and much broader vistas. 

This wasn’t a sudden conversion, but a gradual evolution. Those early books on logic were already implicitly epistemological; and there were already glimpses of broader horizons in some early papers: e.g., “Fallibilism and necessity,” arguing that fallibilism is a thesis about people, not propositions, and so couldn’t be expressed in formal-logical terms, and “Epistemology with a knowing subject,” arguing that epistemology couldn’t be, as Popper supposed, simply a matter of logical relations among propositions but must involve knowing subjects and their cognitive capacities and limitations. And then there was “Descriptive vs. revisionary metaphysics,” exploring the rationale for metaphysicians’ going beyond our everyday concepts and categories. So perhaps it’s not surprising that I soon found myself thinking, not just about our language or our concepts, but about the world; transgressing the boundaries of the conventional philosophical sub-specialties; and eventually — prompted by the response of physicists, economists, legal scholars, and literary theorists to my work — venturing outside philosophy into the sciences, the law, literature, and beyond. 

The upshot has been a huge, but of course still only partially-completed, crossword. Much is filled in only in pencil; much has been revised many times. Nothing, still, is perfectly formulated; everything, still, is potentially open to revision. Nonetheless, some key ideas have proved their worth, and seem to interlock appropriately with each other. My hope is that they reflect something of the enormous complexity both of the world and of our real, but very limited and imperfect, knowledge of it.

Unconscionability

'Undue Influence: Towards A Unifying Concept Of Unconscionability?' by Mark Pawlowski in (2018) 30(1) Denning Law Journal comments

The article argues for an assimilation of the related doctrines of undue influence and unconscionable dealings under one common umbrella of unconscionability. The interrelationship between unconscionable bargains and undue influence under English law is considered in some detail, as well as developments in other Commonwealth jurisdictions, notably, in Canada, Australia and New Zealand. After examining the views of several academic commentators, the conclusion is that such an assimilation would do much to rationalise and simplify current English law. If, however, the English courts are reluctant to undertake what is perceived to be essentially a function of Parliament in developing the law, serious thought should be given to rationalising this area of law by means of legislative intervention.

'Statutory Unconscionability in the High Court of Australia: The Curious Case of the Anagu People' by Ivan Cheuk Him Sin in (2020) Lloyd’s Maritime and Commercial Law Quarterly  comments

‘The lawyer who deals in “unconscionable behavior” is rather like the ornithologist who is content with “small brown bird”‘, so said the late Professor Peter Birks. The conundrum that the concept of unconscionability is of little utility to a lawyer could be ameliorated, it has been suggested, ‘as analogies and comparisons emerged by application of the principles and values underlying the statute’. The upshot is that given the slippery and fluid nature of the notion of ‘unconscionable conduct’, one must be astute to the (statutory) context in which such concept is articulated. Such a context-specific approach guides the court’s inquiry into how consumers’ transactional autonomy should be measured, which in turn directs the court’s readiness to intervene in the relevant business practices which it believes to be ‘unconscionable’. The court’s ability to navigate these troubled waters was put to test in the recent decision of the High Court of Australia Australian Securities and Investments Commission v Kobelt.

Kobelt was discussed in 'Doctrine, policy, culture and choice in assessing unconscionable conduct under statute: ASIC v Kobelt' by Paterson, Clare and Bant in (2019) 13(1) Journal of Equity 81-112.

'Equity in Australia and the United Kingdom: dissonance and concordance' by Mark Leeming (Institute of European and Comparative Law Oxford Law Faculty lecture 25 October 2019) comments 

This paper falls within the area of “comparative common law” (a concept which includes equity). It touches on four aspects of equitable principle. Speaking generally, some aspects of the first and second (confidential information and liability for knowing assistance in a breach of trust) in the Australian and United Kingdom legal systems have diverged; some aspects of the third and fourth (exceptions to Saunders v Vautier and judicial advice) have converged. How did that come about and what can be learned from it? 

 

Introduction 

 

I am no expert of the law of England and Wales, still less Scotland, but my firm view is that there is utility in considering how different legal systems address quite precise questions at a level of detail. That is not to deny the utility of a more general approach, as is often undertaken in some branches of comparative law. From time to time courts have to resolve controversial questions which are, in a sense, universal. Should advocates enjoy an absolute immunity from suit? Should claims for pure mental harm be permitted? It is certainly useful to know the answers given in other legal systems to such questions, and quite commonly the answers are accessible, because the issues have been determined by ultimate appellate courts. But the devil may lurk in the details: there is often a level of concealed complexity in the answers if divorced from their rationale and historical development. The Australian approaches to advocates' immunity and damages for “nervous shock” or pure mental harm, are quite complex. Most decisions of most courts turn on much more narrowly framed questions. It is to be borne in mind that every time a litigant in an Australian court relies on a decision of a United Kingdom court (which must be hundreds and probably thousands of times each year), one aspect of assessing its persuasive value turns on the extent to which the foreign law has diverged from the Australian law. Sometimes this may not be separately articulated, and sometimes it is instinctive – no one would cite United Kingdom authority on quantum for compensatory damages for personal injury. Instead, citation of foreign law tends to occur in areas where the divergence is less pronounced, and, especially, where statute has not intruded at all, or has occurred in a similar way. But that may make it even harder to determine to what extent such divergence as there has been should detract from the value to be accorded to the decision. 

 

The four topics are chosen, not accidentally, from equity’s exclusive jurisdiction. As James Allsop has recently observed, “Equity and equitable principle have a justification and coherence that is not merely historical and rooted in the organisation of English courts of centuries past. A conception of equity is an inhering part of any civilised system of law and justice.” Those characteristics, which I (echoing, amongst others, Lords Millett and Briggs) have elsewhere sought to defend, suggest that equity ought to provide strong, interesting candidates for comparative analysis. The examples are selected in part with a view to putting to one side the distorting effect of statutes. The purpose is to consider how and why two broadly similar legal systems have converged and diverged in their responses to the same precise questions.

Succession in Canada and elsewhere

'Freedom of Testation and Family Claims in Canada' by Alexandra Popovici and Lionel Smith in Kenneth G C Reid, Marius J de Waal, and Reinhard Zimmermann (eds), Comparative Succession Law III (Oxford University Press, 2019) comments

This paper explores the ways in which Canadian legal orders address the tension between freedom of testation and the claims of the family of the deceased. 

The province of Quebec has a civilian law of succession, while the common law governs in the other provinces and in the territories. Under federal law, a different regime governs succession in relation to many members of First Nations. 

At the dawn of the twentieth century, an unbridled freedom of testation prevailed in most of Canada. In the decades that followed, the law evolved to temper this principle in favour of protecting the family of a deceased person, so that obligations of support did not simply vanish upon death. The shape and structure of provision for the family is, however, diverse across the country. There is a great deal of variation even among the statutory regimes in the common law provinces; some require a claimant to show need, an inter vivos obligation of support, or both, while others allow claims even by adult independent children. Under those regimes, where a claimant has standing, the jurisdiction of the courts to intervene in the testator's chosen distribution is highly discretionary. In relation to those members of First Nations to whom it applies, federal law grants a wide power to intervene in the distribution of an estate, in this case not to the courts but to the relevant minister. In Quebec, by contrast, the courts and the Civil Code bear the imprint of a longstanding commitment to freedom of testation. Quebec law aims to convert legal obligations of support that existed at the moment of death into claims against the estate, rejecting any wide discretion and preserving freedom of testation as much as possible. 

In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator. 

'Birmingham v Renfrew (1937): The Foundations of the Mutual Wills Doctrine' by Ying Khai Liew in Brian Sloan (ed), Landmark Cases in Succession Law (Hart, 2019) comments

This paper discusses the facts of Birmingham v Renfrew and the impact of the decision on the development of the mutual wills doctrine in Anglo-Australian law. Much like laying the secure foundations of a building, Birmingham has supplied three central ‘pillars’ upon which the doctrine has gradually been built upon, and upon which the future development of the doctrine can securely be based. The three ‘pillars’ are: the interaction between ‘contract’ and equity, the meaning of ‘contract’, and the rationale of the mutual wills doctrine.

'A Will for Willa Cather' byThomas Simmons in (2018) 83(2) Missouri Law Review comments

In a broadly comparative context, the unexpected conclusion is that in Canada, it is not the common law but the civil law of Quebec that offers the most freedom to a testator.

Artists hold their creative works dear: whether paintings, poems, or songs, their human creators treat them with special care and often desire that same care be exercised after death. Directing particular uses of property from the grave can be met with several objections. The objections sound in alarmist responses to ‘dead hand control’ and include the Rule Against Perpetuities, uncertainty, capriciousness, and the repugnancy of restraints on alienation. This Article considers these and other recurring objections in one particular context and with one particular variety of creative works: an author’s unpublished and private letters to her friends. A mechanism for achieving an artist’s restrictions over the use of her creative works after death is introduced in the form of a purpose trust. Purpose trusts are typically utilized by pet owners to ensure the continued care and preservation of their pets after the owner’s death. Purpose trusts are unique in that they lack ascertainable beneficiaries to enforce the trustee’s duties. Many purpose trusts do not qualify as charitable trusts (which can be enforced by the state attorney general’s office). Instead, a private “enforcer” must be provided. Here, a noncharitable purpose trust designed to restrict access to an author’s private correspondence is introduced; a testamentary trust hypothetically created under the terms of the Last Will and Testament of the celebrated American author Willa Cather.

Privacy Principles and Fiduciaries

'Data Pollution' (University of Chicago Coase-Sandor Institute for Law and Economics Research Paper No. 854) by Omri Ben-Shahar comments

Digital information is the fuel of the new economy. But like the old economy's carbon fuel, it also pollutes. Harmful "data emissions" are leaked into the digital ecosystem, disrupting social institutions and public interests. This article develops a novel framework- data pollution-to rethink the harms the data economy creates and the way they have to be regulated. It argues that social intervention should focus on the external harms from collection and misuse of personal data. The article challenges the hegemony of the prevailing view - that the injuries from digital data enterprise are exclusively private, diminishing the privacy of the people whose information is used. It claims that a central problem in the digital economy has been largely ignored: how the information individuals give affects others, and how it undermines and degrades public goods and interests. The data pollution metaphor offers a novel perspective why existing regulatory tools-torts, contracts, and disclosure law-are ineffective, mirroring their historical futility in curbing the external social harms from environmental pollution. The data pollution framework also unfolds up a rich roadmap for new regulatory devices - an environmental law for data protection - that focuses on controlling these external effects. The article examines whether the general tools society has long used to control industrial pollution-production restrictions, carbon tax, and emissions liability -could be adapted to govern data pollution.

 'Fiduciary management of a social media account' by Kateryna Nekit in (2020) Trusts and Trustees analyzes

 the concept and legal nature of social media accounts to explore whether these can become the object of fiduciary management. It examines the essence of a social media account and reveals the possibility of equating it to a kind of property. The article focuses on the possibility of inheriting a social media account. This takes into account approaches in various countries to the problem of determination of the post-mortem fate of digital assets, which shows a unified tendency to consider social media accounts as part of the estate transferred to the heir. The legal requirements on fiduciary management of a social media account considering its specifications are revealed.

'Theorizing Transnational Fiduciary Law' by Seth Davis and Gregory C Shaffer in (2020) 5(1) UCI Journal of International, Transnational and Comparative Law comments

This symposium Article theorizes and assesses transnational legal ordering of fiduciary law. Fiduciary law imposes legally enforceable duties on those entrusted with discretionary authority over the interests of others. The fiduciary law of a state may apply to fiduciary relationships having a transnational (or even global) scope. Fiduciary norms themselves are transnational to the extent that they settle as governing legal norms in ways that transcend and permeate state boundaries. Curiously, however, fiduciary legal theory and transnational legal theory have yet to meet. This symposium takes the first steps towards a comprehensive theory of transnational fiduciary law. To assess transnational legal ordering of fiduciary law, one must study the extent of normative settlement across state boundaries. This can be done in terms of a meta concept of fiduciary law involving a transnational body of law, or in terms of the processes that give rise to discrete domains of fiduciary law to address particular problems as understood by relevant actors. Comparative legal analysis is critical for assessing the extent of concordance and divergence in the development and practice of fiduciary law across states. This Article introduces symposium articles that assess transnational fiduciary law as a meta concept; transnational legal ordering of fiduciary law in discrete domains; and comparative fiduciary law. Together, these articles suggest that processes of transnational legal ordering can give rise to transnational fiduciary law and the potential development of discrete transnational legal orders that transcend and permeate nation-states.

Trade Secrets

'AIRR Data Under the E.U. Trade Secrets Directive: Aligning Scientific Practices with Commercial Realities' by Jacob S Sherkow and Timo Minssen in Jens Schovsbo, Timo Minssenand Thomas Riis (eds) The Harmonization and Protection of Trade Secrets in the EU (Edward Elgar, 2019) comments

 Whether the E.U. Trade Secrets Directive sufficiently and appropriately covers cutting-edge complex technologies is of critical interest to policy-makers, scientists, and commercial developers alike. One such technology — adaptive immune receptor repertoire sequencing, or AIRR-seq — raises difficult questions concerning what information is and should be protected under the new Directive, and how to best align scientific practices with commercial realities. The ‘raw’ form AIRR-seq data — massive genetic datasets of hundreds of millions of individuals’ immune cells — tends to be freely shared among academic researchers, thus typically destroying the protectability of the underlying information. But follow-on data — essentially, information interpreting that data — is nonetheless protectable under the Directive because it is both economically valuable and not readily available from an examination of the raw data itself. Protecting this follow-on information while encouraging the free sharing of AIRR-seq data best accords the purpose of the Trade Secrets Directive. Lessons from the case of AIRR-seq data also sheds light on other puzzles concerning the tensions between disclosure and various forms of legal protections, such as the mutual exclusivity of patents and trade secrets, the sharing of clinical trial data, and protecting genetic diagnostics.

Morse and Code

'The Telegraph' by Adam Mossoff in Dan Hunter and Claudy Op de Kamp (eds) A History of Intellectual Property in 50 Objects (Cambridge University Press, 2018) comments

This chapter, written for the forthcoming monograph A History of Intellectual Property in 50 Objects, discusses the scientific, technological, and social context of Samuel F.B. Morse's invention of the telegraph in the 1830s in New York City. Morse’s invention was called the “Lightning Line” and he was called the “Lightning Man,” because of its use of electricity to operate an electro-magnet in making tics on a strip of paper—the dots and dashes also invented by Morse to use on his telegraph and eponymously called Morse Code. Lightning is an apt metaphor if only because it captures perfectly the communications revolution sparked by Morse’s invention, which is still occurring today via the Internet (its undersea fiber optic cables follow the same paths of the telegraph cables first laid in the 1850s). In making possible instantaneous communication of all information the world over, the telecommunications revolution wrought by Morse’s telegraph has impacted everything—industry, commerce, education, and even the English language. In its survey of this wide-ranging impact of Morse’s telegraph, it brings some added color to a man and his invention that most patent lawyers know only via a lawsuit that resulted in a famous Supreme Court decision in 1851, and that many others today know only as the creator of Morse Code.

and more datafication

'The problem of innovation in technoscientific capitalism: data rentiership and the policy implications of turning personal digital data into a private asset' by Kean Birch, Margaret Chiappetta and Anna Artyushina in (2020) Policy Studies comments

A spate of recent scandals concerning personal digital data illustrates the extent to which innovation and finance are thoroughly entangled with one another. The innovation-finance nexus is an example of an emerging dynamic in technoscientific capitalism in which innovation is increasingly driven by the pursuit of “economic rents”. Unlike innovation that delivers new products, services, and markets, innovation as rentiership is defined by the extraction and capture of value through different modes of ownership and control over resources and assets. This shift towards rentiership is evident in the transformation of personal digital data into a private asset. In light of this assetization, it is necessary to unpack how innovation itself might be a problem, rather than a solution to a range of global challenges. Our aim in this paper is to conceptualize this relationship between innovation, finance, and data rentiership, and examine the policy implications of this pursuit of economic rents as a deliberate research and innovation strategy in data-driven technology sectors.

 The authors argue

 In May 2019, the Canadian Federal Government launched its new Digital Charter amidst a flurry of metaphors likening personal digital data (henceforth “personal data”) as the “new oil” or “new electricity”. As such, the framing of personal data in the Digital Charter reflects broader political and policy imaginaries of personal (and other) data as the key driver of twenty-first century economies; and hence legitimating the need to step in now and shape future policy contexts and frameworks. This Canadian example is not an isolated incident by any means. It reflects previous attempts by the European Union (EU), for example, to strengthen their data privacy and protection regulations with the 2018 General Data Protection Regulation (GDPR) (Edwards 2018; Marelli, Lievevrouw, and van Hoyweghen 2020). Other actors like the World Economic Forum (Schwab 2017), the Centre for International Governance Innovation (Ciuriak 2018), the Information Technology and Innovation Foundation (ITIF 2019), and Organisation for Economic Co-operation and Development (OECD 2019) have also waded into these policy debates about data governance, presenting their various takes on the policies and regulations needed to support an emerging “data-driven” economy. Yet, a range of academic, political, and civil society voices are also raising concerns about the use and abuse of personal data, now and in the future. A particular concern, which is exemplified by Zuboff’s (2019) new book The Age of Surveillance Capitalism, is with the ethical, political, and social issues surrounding privacy, consent, and behavioural influence implied in the centralized control of personal data by a few, monopolistic “Big Tech” companies (e.g. Facebook, Google, Amazon, Apple, etc.). 

Our intention in this paper is not to delve into the ethical, legal, and social concerns raised by “datafication”; others are doing and have done this already (e.g. boyd and Crawford 2012; Edwards 2018; Beer 2019; Morozov 2019; Lupton 2020; Prainsack 2020a). We also do not intend to engage in debates about the ethical and social implications of algorithms and algorithmic processes (e.g. Neyland 2016; Noble 2018). Rather, our complementary focus is on the (so-called) resource that underpins said algorithms; that is, digital personal data. Analytically, our aim is to examine the political economy of personal data as this relates to the changing innovation-finance nexus of technoscientific capitalism. In doing so, we want to answer the question: what are the (policy) implications of turning our personal data into a privatized, political-economic resource? We ask this question in order to understand how the allocation of financial capital to research and innovation comes to shape that research and innovation in problematic ways (Hackett 2014). 

Underpinning this transformation of personal data is the policy assumption that innovation entails the commercialization of science and technology, thereby legitimating policy-making configured by market (or business) forces and logics. In response, a range of academic, political, and policy critiques of these market-centred assumptions about innovation have emerged over the last couple of decades. Different social actors have put forward a range of responses and solutions to the problems resulting from market-driven innovation. An early example is the notion of “open innovation” posited by Chesbrough (2003) and taken up by a range of policy-makers and stakeholders in different forms (e.g. “open science”). They stress the need to breakdown the internal organization of innovation (e.g. in R&D labs) by encouraging the distribution of innovation across multiple organizations and communities; this tends to be based on overcoming restrictive intellectual property rights (IPRs). A later example is the idea of the “entrepreneurial state” put forward by Mazzucato (2013), which has proved especially popular amongst policy-makers. Her main argument is that the state plays a vital role in supporting innovation, and this role is often ignored or downplayed. And a final example is the “responsible research and innovation” (RRI) programme, now a well-developed research theme and evaluation approach within science and technology studies (STS) and embedded in EU policy frameworks (see Stilgoe, Owen, and Macnaghten 2013). RRI emerges from a concern that research and innovation should directly address societal problems. 

Notwithstanding their contributions to ongoing academic and policy debates, these three responses highlight a series of problems with innovation that can only be explained by analysing the changes to the innovation-finance nexus at the heart of contemporary, technoscientific capitalism. By finance, we mean the social actors (e.g. venture capital), knowledges (e.g. financial economics), instruments (e.g. securities), and processes (e.g. discounting) that underpin the allocation of private capital investment in society; for example, the investment in technoscientific development. According to key scholars (e.g. Krippner 2005), finance plays an increasingly significant role in policy-making – and societal organization more generally – primarily as the result of the insertion of financial logics, knowledges, and practices in policy decisions (e.g. creating a macroeconomic environment that ensures stable returns on investment). 

Our overall argument is that contemporary, technoscientific capitalism entails innovation-financial logics, knowledges, and practices configured by “rentiership” – or the extraction and capture of value through different modes of ownership and control over resources and assets (Birch 2017a, 2017b, 2020). A number of policy actors have highlighted the negative and problematic implications of this shift towards rentiership, especially as it relates to innovation and its financing – for example, increasing market concentration and power, new technological monopolies, rising inequalities, etc. (e.g. Jacobs 2015; UNCTAD 2016). So, while technological innovation is often lauded as the watchword of progress and the fount of economic growth by politicians and policy-makers (e.g. ISED 2019), there is increasing concern that what we call innovation is not solving or even mitigating the key societal challenges we are all facing around the world; for example, climate change, stagnating incomes, rising inequality and social distrust, increasing political polarization, etc. (Tyfield 2017). This appears not to be a problem with current innovation policy per se, but rather a problem of innovation itself, precisely as it has become increasingly entangled with finance and driven by diverse forms of rentiership. The aforementioned responses to problems with innovation provide only a partial response to our concerns, since they are all underpinned by a continuing faith in the capacity to reorient the finance-innovation nexus towards socially beneficial ends. We are more sceptical. 

To start then, we draw attention to the underlying emphasis on the commercialization of technoscience in contemporary research and innovation policy. In particular, we highlight the increasing entanglement of innovation with finance. In the following section we outline what this innovation-finance nexus means for our thinking about innovation, especially the idea that innovation itself is the problem. We highlight the importance of data rentiership here as a way to understand this problem when it comes to the political economy of personal data; by data rentiership we mean the pursuit of innovation strategies designed to capture or extract value through ownership and control of data as an asset. Finally, we turn to the policy responses to the innovation-finance nexus mentioned above and the specific policy implications of data rentiership in contemporary, technoscientific capitalism.

Homoconnectivity

'Discrete and looking (to profit): homoconnectivity on Grindr' by Chase Aunspach in (2020) 37 Critical Studies in Media Communication 43-57 comments

The queer dating and hookup app Grindr evidences a technological and economic intensification in queer spaces online. The dominant modality of capitalist power is no longer consumerist norms but the collection and analysis of data. Grindr’s participation in datafication distributes increased risks upon its queer users and necessitates a renewed politics of queer privacy beyond homonormativity. I name this arrangement of power homoconnectivity and detail four techniques that capitalism deploys to capture and monetize queer social production. Ultimately, this article unpacks how Grindr designs experiences that move users to log into the app while hiding its engagement with multi-sided markets. Oscillating between producing continuous experiences and deploying annoying constraints, platforms like Grindr privatize and monetize user spaces, communities, social production, and lives under the guise of increased connectivity. With the goal of building more just queer worlds, homoconnectivity makes legible new pressure points to push back against the growing ubiquity of capitalist datafication and queer world-taking. 

 Aunspach argues

Love, Simon’s (2018) sugary-sweet, queer coming-of-age narrative can evidence that there is more to queer media politics than representation. Take the following exchange between Simon and his father, Nick (Godfrey, Bowen, Shahbazian, Klausner and Berlanti, 2018). After a quick hug and apology for his casual homophobia, Simon’s dad offers, “Hey. I thought maybe we could sign up for Grindr together.” Simon puts his hands in his pockets, digging for the right thing to say: “You don’t know what Grindr is, do you?” “It’s Facebook for gay people!” flexes Nick, stepping inside their house and into his newfound allyship. Looking down, Simon says plainly, “ … not what it is,” before following his dad through the doorway. Obviously, Simon’s dad could have used more background information about Grindr. Released in 2009, Grindr is a geolocative mobile application with over 3.8 million daily active users who are primarily men-who-have-sex-with-men, as well as transwomen and non-binary individuals (Bucksense and Grindr, 2018). Arranging hookups is predominately why people log into Grindr (Licoppe, Rivière, and Morel, 2016), and other uses include simply passing the time, coordinating sex work, chatting with queer friends, organizing intimate and sometimes non-sexual chemsex sessions, generally locating oneself within a broader queer community, and consensually exchanging self-pornography (Ahlm, 2017; Brennan, 2017; Cassidy, 2018; Hakim, 2019; Miles, 2017; Tziallas, 2015). Researchers have argued Grindr, due the app’s networked immediacy and the relative discreetness of cell phones, can challenge the heteronormativity of otherwise contextually “straight” spaces (Batiste, 2013). Affordances like this can make Grindr feel like a hard break with previous queer spaces. However, Mowlabocus (2010) pointed out that Grindr is one technology in a long history that demonstrates how the seemingly firm lines between the public–private, online–offline “are at best, difficult to maintain, and at worse, fabrications that conceal the truth of” queer subcultures’ terrains (p. 15). These similarities do not stop at the public–private, online–offline divide; Grindr and its users’ communication often reaffirm the long history of inequalities sustained in otherwise “inclusive” queer spaces along power lines like citizen status, class, and whiteness (Shield, 2019). 

In this article, I argue that Simon—not his dad—is mistaken. Grindr and Facebook are more similar than different. They are platforms that bring together users, corporate partners, and even governments who have a vested interest in “the systematic collection, algorithmic processing, circulation, and monetization of user data” (van Dijck, Poell, and de Waal, 2018, p. 4). Thinking with Grindr and similar apps extends previous work about queer commercialization online (Campbell, 2005), privacy (Fuchs, 2012), technoliberalism (Pfister and Yang, 2018), and platform studies (van Dijck, 2013) to better enunciate the material and political stakes for queer people in this current mutation of capitalism. I offer the concept of homoconnectivity1 to illuminate the risks LGBTQ people as a group face online—not just because Grindr encourages stranger sociability (Albury and Byron, 2016) but due to datafication (Crain, 2018; Mai, 2016). 

I am not alone in this concern. In March 2019, Reuters reported that the Federal Committee on Foreign Investment in the United States (CFIUS) notified Grindr’s parent company Beijing Kunlun Tech, after considering its plan for an initial public offering, the organization needed to sell the app outright since its Chinese ownership posed a U.S. national security risk (O’Donnell, Baker, & Wang, 2019). This follows a U.S. government trend of questioning how companies located in China might be pressured by the Chinese government to give up user data. In the case of Grindr, its collection of users’ sex practices, locations, and serostatuses could make rich fodder for Chinese agents to coerce people who might not be openly queer into carrying out military and corporate espionage (Finley, 2019). Despite the fact the CFIUS rescinded its objections in July 2019 (Yang, 2019), this anxiety over queer data is not just some Cold War hangover. Grindr’s (2018) Terms of Service boldly declare that by logging into the app “you consent to the transfer and processing of [y]our data in the United States of America and any other jurisdiction throughout the world” (“Use Outside the United States,” para. 1). In a heteronormative world with surveilling governments and corporations unaccountable for their privacy practices, the distribution of risk placed on queer people online calls for further theorizing and political action. 

In what follows, I establish the concept of homoconnectivity to then zoom into Grindr as a specific instantiation of its data extraction. I join a growing group of scholars (Faris, 2018; Race, 2015; Shield, 2018; Woo, 2015; Yeo and Fung, 2018) taking Grindr itself as a text to counteract a general trend in queer media research that “treats the medium of delivery—television, radio, film, the internet, and so on—as neutral, universal, or presumptively masculine” (Shaw and Sender, 2016, p. 1). The remainder of this article unfolds in three main moves. First, I animate homoconnectivity to illuminate how platform capitalism and datafication affect queer users in queer-for-queer online spaces. This sets the stage to, second, analyze Grindr’s design, following how the app creates user experiences that teeter–totter between continuity and constraint to smooth over the app’s multiple market pressures to render and collect user data, advertise, and obtain purchases of its subscription service. I end with a brief meditation on the media struggles and futures of homoconnectivity.

Constitutional protection of privacy

The Right to Privacy in Asian Constitutions' by Graham Greenleaf in The Oxford Handbook of Constitutional Law in Asia (Forthcoming) comments

This Chapter examines how jurisdictions in East and Southeast Asia protect various aspects of privacy through their constitutional regimes. It first surveys East Asian jurisdictions, starting with the jurisdictions that are most protective of privacy rights, then turns to Southeast Asia, again starting with the jurisdictions that are relatively more protective of privacy. Finally, certain patterns and highlights are identified from viewing constitutional privacy rights in East and Southeast Asian jurisdictions together as a region. 

Of the jurisdictions considered in this chapter, only two do not provide any apparent constitutional protection of privacy (Brunei, Laos), but constitutional protections are not justifiable in at least three others (China, North Korea, and Vietnam). Protections are of uncertain existence in Malaysia and Singapore, and untested in the courts in four jurisdictions (Timor Leste, Thailand, Cambodia and Macau SAR). That leaves six North and Southeast Asian jurisdictions where constitutional privacy protections have been enforced by the courts (South Korea, Taiwan, Japan, Hong Kong SAR, Indonesia and the Philippines). 

The decisions of the Taiwan Constitutional Court, the Korean Constitutional Court, and the Philippines Supreme Court are the most detailed articulations of the protection of privacy by constitutional courts in Asia. All three courts have recognized strong privacy protections, particularly as they are based primarily on implied privacy rights, but on different issues, ranging from ID card schemes to telecommunications interception, to compulsory fingerprinting. 

Asian courts with the most developed privacy jurisprudence frequently use similar language to protect privacy. Courts have found privacy to be an implied right based on protections of dignity and autonomy interests, such as personality development and informational self-determination. In defining valid restrictions on the constitutional right of privacy, the courts have adopted strikingly similar legal tests. However, despite there being a wealth of privacy jurisprudence from some Asian courts, there are no instances of these courts citing each other’s decisions as valuable sources of arguments about privacy.

Vulnerability

Vulnerable Data Subjects' by Gianclaudio Malgieri and Jedrzej Niklas in (2020) Computer Law and Security Review comments

The discussion about vulnerable individuals and communities spread from research ethics, to consumer law and human rights. According to many theoreticians and practitioners, the framework of vulnerability allows formulating an alternative language to articulate problems of inequality, power imbalances and social injustice. Building on this conceptualisation, we try to understand the role and potentiality of the notion of vulnerable data subjects. The starting point for this reflection is wide-ranging development, deployment and use of data-driven technologies that may pose substantial risks to human rights, the rule of law and social justice. Application of such technologies area can significantly contribute to systematically disadvantage marginalised communities, exploit people in particularly sensitive life situations and lead to discrimination. Considering those problems, we recognise the special role of personal data protection and call for its vulnerability-aware interpretation. However, to better delineate and contextualise the general understanding of human vulnerability we first review the theories of vulnerability and the use of the concept in international human rights law and European law. Consequently, we recognise two dichotomies that are related to human vulnerability that also emerge in the data protection field: the first one relates to the definition and the second one to the manifestation of vulnerability. As regards the definition, we observe the tensions between the universal approach (vulnerability is a general human condition) and the particular one (only specific groups are vulnerable). As regards manifestation, we observe the dichotomy between vulnerability within the data processing itself and vulnerability to the outcome of data processing. To overcome limitations that arose from those two dichotomies we support the idea of layered vulnerability, which seems compatible with the GDPR and the risk-based approach. We also see particular connections between vulnerability and issues of consent, Data Protection Impact Assessment and the role of Data Protection Authorities.

Vehicle Data

'Access to Digital Car Data and Competition in Aftermarket Maintenance Services' by Bertin Martens and Frank Mueller-Langer in (2020) 16(1) Journal of Competition Law and Economics 116 comments

Before the arrival of digital car data, car manufacturers had already partly foreclosed the maintenance market through franchising contracts with a network of exclusive official dealers. EU regulation endorsed this foreclosure but mandated access to maintenance data for independent service providers to keep competition in these markets. The arrival of digital car data upsets this balance because manufacturers can collect real-time maintenance data on their servers and send messages to drivers. These can be used to price discriminate and increase the market share of official dealers. There are at least four alternative technical gateways that could give independent service providers similar data access options. However, they suffer in various degrees from data portability issues, switching costs and weak network effects, and insufficient economies of scale and scope in data analytics. Multisided third-party consumer media platforms appear to be better placed to overcome these economic hurdles, provided that an operational real-time data portability regime could be established

Algorithmic Discrimination and AI Governmentality

'Strengthening legal protection against discrimination by algorithms and artificial intelligence' by Frederik J. Zuiderveen Borgesius in the latest issue of The International Journal of Human Rights comments

Algorithmic decision-making and other types of artificial intelligence (AI) can be used to predict who will commit crime, who will be a good employee, who will default on a loan, etc. However, algorithmic decision-making can also threaten human rights, such as the right to non-discrimination. The paper evaluates current legal protection in Europe against discriminatory algorithmic decisions. The paper shows that non-discrimination law, in particular through the concept of indirect discrimination, prohibits many types of algorithmic discrimination. Data protection law could also help to defend people against discrimination. Proper enforcement of non-discrimination law and data protection law could help to protect people. However, the paper shows that both legal instruments have severe weaknesses when applied to artificial intelligence. The paper suggests how enforcement of current rules can be improved. The paper also explores whether additional rules are needed. The paper argues for sector-specific – rather than general – rules, and outlines an approach to regulate algorithmic decision-making. 

 Borgesius argues

 The use of algorithmic decision-making has become common practice across a wide range of sectors. We use algorithmic systems for spam filtering, traffic planning, logistics management, diagnosing diseases, speech recognition, and much more. Although algorithmic decision-making can seem rational, neutral, and unbiased, it can also lead to unfair and illegal discrimination. 

The two main questions for this paper are as follows. (i) Which legal protection against algorithmic discrimination exists in Europe, and what are its limitations? (ii) How could that legal protection be improved? The first research question for this paper is evaluative, as it evaluates current law. The second research question can be characterised as a design question, as it discusses whether, and if so how, new laws should be designed.

The paper focuses on the two most relevant legal instruments for defending people against algorithmic discrimination: non-discrimination law and data protection law. The paper speaks of ‘discrimination’ when referring to objectionable or illegal discrimination, for example on the basis of gender, sexual preference, or ethnic origin. The word ‘differentiation’ refers to discrimination, or making distinctions, in a neutral, unobjectionable, sense.

The paper’s main contributions to scholarship are the following. First, there has not been much legal analysis of European non-discrimination law in the context of algorithmic decision-making. The few papers that discuss European non-discrimination law do so with a focus on EU law; this paper discusses the norms from the European Convention on Human Rights. Second, building on other literature, the paper assesses how data protection law can help to protect people against discrimination. Third, the paper proposes an approach to regulate algorithmic decision-making in a sector-specific way. The paper could be useful for scholars, practitioners, and for policymakers that want to regulate algorithmic decision-making.

The paper focuses on the overarching rules in Europe (the region of the Council of Europe, with 47 member states); national rules are out of scope. Because of the focus on discrimination, questions relating to, for instance, privacy and freedom of expression are outside the scope of the paper. The paper is based on, and includes text from, a report by the author for the Anti-discrimination department of the Council of Europe.

The paper is structured as follows. Section 2 introduces algorithmic decision-making, artificial intelligence, and some related concepts. Section 3 shows that there is a problem, and gives examples of algorithmic decision-making that leads, or could lead, to discrimination. Section 4 turns to law. The paper discusses current legal protection against algorithmic discrimination, and flags strengths and weaknesses of that protection. Section 5 suggests how enforcement of current non-discrimination norms can be improved. The section also explores whether algorithmic decision-making necessitates amending non-discrimination norms. The paper outlines an approach to adopting rules regarding algorithmic decision-making. Section 6 offers concluding thoughts.

'The Automated Administrative State: A Crisis of Legitimacy' by Danielle K. Citron and Ryan Calo comments

 The legitimacy of the administrative state is premised on our faith in agency expertise. Despite their extra-constitutional structure, administrative agencies have been on firm footing for a long time in reverence to their critical role in governing a complex, evolving society. They are delegated enormous power because they respond expertly and nimbly to evolving conditions. In recent decades, state and federal agencies have embraced a novel mode of operation: automation. Agencies rely more and more on software and algorithms in carrying out their delegated responsibilities. The automated administrative state, however, is demonstrably riddled with concerns. Legal challenges regarding the denial of benefits and rights—from travel to disability—have revealed a pernicious pattern of bizarre and unintelligible outcomes. 

Scholarship to date has explored the pitfalls of automation with a particular frame, asking how we might ensure that automation honors existing legal commitments such as due process. Missing from the conversation are broader, structural critiques of the legitimacy of agencies that automate. Automation throws away the expertise and nimbleness that justify the administrative state, undermining the very case for the existence and authority of agencies. 

Yet the answer is not to deny agencies access to technology. This article points toward a positive vision of the administrative state that adopts tools only when they enhance, rather than undermine, the underpinnings of agency legitimacy.

'Artificially Intelligent Government: A Review and Agenda' by David Freeman Engstrom and Daniel E. Ho in Roland Vogl (ed) Big Data Law (Forthcoming) comments

 While scores of commentators have opined about the need for governance of artificial intelligence (AI), fewer have examined the implications for government itself. This chapter offers a synthetic review of an emerging literature on the distinct governance challenges raised by public sector adoption of AI.

Section 2 begins by providing a sense of the landscape of government AI use. While existing work centers on a few use cases (e.g., criminal risk assessment scores), a new wave of AI technology is exhibiting early signs of transforming how government works. Such AI-based governance technologies cover the waterfront of government action, from securities enforcement and patent classification to social security disability benefits adjudication and environmental monitoring. We show how these new algorithmic tools differ from past rounds of public sector innovation and raise unique governance challenges. We highlight three such challenges emerging from the literature.

Section 3 reviews the legal challenges of reconciling public law’s commitment to reason-giving with the lack of explainability of certain algorithmic governance tools. Because existing work has fixated on a small set of uses, it reflects the tendency in the wider algorithmic accountability literature to focus on constitutional doctrine. But the diverse set of algorithmic governance tools coming online are more likely to be regulated under statutory administrative law, raising distinct questions about transparency and explainability. Next, Section 4 reviews the challenges of building state capacity to adopt modern AI tools. We argue that a core component of state capacity includes embedded technical expertise and data infrastructure. Standard frameworks fail to capture how capacity-building can be critical for (a) shrinking the public-private sector technology gap and (b) “internal” due process, which administrative law has increasingly recognized as key to accountability. Finally, Section 5 turns to challenges of gameability, distributive effects, and legitimacy as the new AI-based governance technologies move closer to performing core government functions. We highlight the potential for adversarial learning by regulated parties and contractor conflicts of interest when algorithms are bought, not made. Gaming concerns highlight the deeper political complexities of a newly digitized public sector.

Section 6 concludes by providing cautious support for adoption of AI by the public sector. Further progress in thinking about the new algorithmic governance will require more sustained attention to the legal and institutional realities and technological viability of use cases.