Monday, December 04, 2006

Technology and Equality

The relationship between technology and equality is complex. I think there are two dominant narratives popular now, and two counter-narratives that need a better hearing.

Dominant narrative 1: A rising technological tide lifts all boats, and leads to a convergence of living standards. This line of thought goes back at least to Adam Smith, who suggested that "the accommodation of a European prince does not always so such exceed that of an industrious and frugal peasant, as the accommodation of the latter exceeds that of many an African king." Smith also tended to explain a convergence of living conditions as epiphenomenal of nobles' desire for expensive baubles; "the expensive vanity of the landlord made him willing to accept" gradual cession of power over individual lives in exchange for the accumulation of durable goods.

Some current technological developments validate these models. For instance, critics of oligopolistic control of the US music market might frame the rise of file-sharing technology as a deeply egalitarian development. Anyone with an internet connection can download content long locked up by an industry only recently stirred to address pricing concerns. Internet access to information in general is a "equalizing" development; a poor family can access a trove of medical studies previously only available to professionals. This is one of the main reasons to favor digitization projects like Google's (and one reason why I think it is a matter of principle, and not just convenience, to use hyperlinks to "vote" for open access sources rather than scrounging behind proprietary databases for sources not accessible to all.)

Counternarrative 1: New technologies can harden social stratification, and prompt "arms races" that merely re-allocate (rather than produce new) goods and services. Yet each of the technological examples given above has a "mirror image" that undermines its initial emancipatory promise. From the Secure Digital Music Initiative to vertical integration of content and devices, virtually every new technology of "info-anarchy" has been matched by a technique of perfect control--even at the cost of crippled and unpopular products. As Lior Strahilevitz argues, "market producers will have very promising competitive strategies at their disposal when they see social producers threatening their revenue streams." New technology of "anti-circumvention" is a key part of that strategy. Without a "fair use infrastructure" for digital rights management, and pricing systems that take ability-to-pay seriously, the vast majority of consumers could lose out in the ensuing battle between oligopolists and hackers.

Another dynamic I'll be focusing on this week is the rise of technological "arms races" that appear to harden existing market-based hierachies. Google's search technology created a fantastic clearinghouse of information--but now battles for prominence in search results could lead old powerhouses to dominate this new battlefield. Adwords are already auctioned, and even unpaid/organic search results could end up being determined by who bids the most for "search engine optimization" technology. Search engines themselves create great social welfare--but much of the onslaught of follow-on technology for manipulating results seems designed primarily to channel that welfare to those best able to bid for it.

In my next post, I'll focus on the second dominant narrative of Law, Tech, & Equality that tries to justify this state of affairs: namely, that "we need to accept unequal access to technologies now, to spur more innovation later."


Blogger Gaia Bernstein said...

Are you suggesting that certain technologies promote equality while others advance social stratification? Basically, are you arguing that each narrative is partly true?

If this is your descriptive claim, do you believe we should articulate different principles for technologies that promote equality than for technologies that cause social stratification?

12/04/2006 2:56 PM  
Blogger Arthur Cockfield said...

Hi Frank,

I think the two themes you develop--looking at the upside as well as the potential downside of technology--is very helpful in terms of attempts to develop a law and technology theory. I think we do generally emphasize the upsides of technologies in legal analysis--the notion that new technologies tend to make us healthier, wealthier and (possibly) wiser. Sometimes this is called the instrumental perspective in that it calls for the adoption of any technology that serves a demontrated instrumental purpose (such as promoting efficient production).
But of course there is another view. In the sociological literature, the critics of technology are often lumped together as substantive theorists as they explore the substantive impact of technological development on society, apart from a technology's intended purpose.

I gave a law and technology theory workshop last week and an attendee (I unforunately did not catch her name) gave me a good example of the tension you identified in your post. She is studying the regulation of cell phones and noted that while cell phones had an initial intended use--wireless communication--another use has now arisen as police can track the geographic location of cell phone users through the phone records maintained by phone companies. As a result, many of us now carry around a tracking device that could be potentially used by the state as part of an investigation against us. The law has permitted this secondary and unintended use to go forward, which highlights the ambivalent aspects of technology. It is partly for this reason that I feel that substantive theories of technology could help to inform a law and technology theory. I suppose there are other ways to explore the tension you've identified, and I'd be interested to hear about them.


12/04/2006 3:36 PM  
Anonymous Anonymous said...

Frank --

What I get from your upside/downside stories is that perhaps the term "technology" is carrying a little too much water here.

Query what it means for a technology to exist. When we speak of technological progress, we often conflate technological know-how with the social exercise of particular capabilities. In other words, the term technology often frames itself as a progress of knowledge but reveals itself as the exercise of specific forms of social power. Which might, by the way, lead some people to consider Foucault's claims about how scientific truth is established.

Perhaps it might be better not to think of technology in some objective sense as a thing that arrives and has an impact on law, but instead as a means by which power is asserted by some groups over others.

Imho, this is where software technologies and hacking become particularly interesting. To some extent they replicate very familiar stories about technology and power (see Jamie Boyle's "Foucault in Cyberspace" paper on this) and to some extent they allow somewhat newer, more disruptive, perhaps even more democratic things to occur.

On your Adam Smith quote -- that's an interesting choice. You could also go earlier to Locke, couldn't you, who noted that "a King of a large and fruitful territory [in America] feeds, lodges, and is clad worse than a day Labourer in England." I think Locke pointed to this difference, though, to say something about private property rights, not technology.

-- Greg

12/04/2006 4:42 PM  
Blogger Frank said...

In response to Gaia: Yes to all those questions. In the IP field, perhaps the best example of a “tailoring effort” here is Michael Carroll’s work on “uniformity costs” in IP law. He synthesizes a good deal of work out there on how patent law, copyright law, etc. need to be sensitive to the specific dynamics of particular industries. Of course, that literature is presently focused on how to increase innovation in all those areas—I’m more focused on the diffusion/equality concerns.

Art: That cellphone example is great—totally unintended consequence. One question is: are people aware of that result? One of the things I would hope to do to lessen the “sting” of inequality-enhancing technologies would be to let people “know what they’re doing” when they use them. It may not be a big step, but it could help. For example, a student may have to disclose all the technologies they use when they write a paper. Or an employer may have to tell employees all the ways they “checked them out.” (Finland has, for example, banned the use of Google by prospective employers.)

12/04/2006 4:56 PM  
Blogger Frank said...

Greg: You are pointing out some very fundamental nomenclatural concerns that this forum will have to sort out at some point. And what you say of Locke could probably have been just as easily (and correctively) applied to my quotes from Smith. But let me try to defend a “squishy” approach for now.

When I commented on Lyria's and Art's presentations at law and society, one of the things I was most interested in was the potential conceptualization of law itself as a technology. After all, it is a way of getting things done. So I really like your idea of calling technology "a means by which power is asserted by some groups over [the world and] others" {if I can be forgiven a brackety paraphrase). I think Jacques Ellul’s account of “technique” would match the expansiveness of your definition.

On the other hand, we have to have some way of distinguishing between independent and dependent variables here. I think one of our premises is that law can influence technology, and we have to define technology in some independent way (say, Lessig's distinction between "law" and "architecture").

But I also think Mike Madison’s work on “things and the law” may be of great interest here. He talks about the “reification of conceptual things as material things, so that computer software is treated as a good . . . [and] the characterization of material things as conceptual things, so that digital goods become licensable.” He then states:

“It may no longer be apt to divide the world cleanly into conceptual and material objects. Things combine features of both. As a result, they can no longer be viewed solely as passive backgrounds against which relation-based legal analysis unfolds.”

So on this view, maybe the key is not to define technology apart from law, but to develop a mode of understanding that clarifies the mutual interrelation of rules and objects. Trade secret law may provide a good example here; someone can either try to accomplish nondisclosure by making employees sign detailed agreements, or by keeping it under lock and key (real secrecy). It’s hard to distinguish the contract and the lock functionally.

12/04/2006 5:17 PM  
Blogger Lyria Bennett Moses said...

Technologies can have quite hidden "equality" impacts. I read an interesting book (Mike Michael, Reconnecting Culture, Technology and Nature) recently which discussed (inter alia) the remote control. Given that surveys confirm that "the man of the house" is generally in control of a TV remote, this seemingly innocent device might "reproduce relations of power within the family." That does not mean that every technology will have an equality impact, although probably more than usually attracts academic attention and debate.

Another point - "equality" is itself a difficult concept - it is something that everyone believes in while having different outcomes in mind. Are you necessarily talking about technologies that enhance "equality" or rather technologies that enhance something like democracy or social discourse. There is quite a lot of literature on technology as enhancing or diminishing democracy (pretty much the same literature as Arthur is referring to).

Finally - given the extensive literature on social impacts of technology (more generally and in specific contexts), what can lawyers add? Should we be focusing on describing technology's beneficial and harmful influences on society or rather on law's ability to guide technology (can you really stop people using Google by passing a law to that effect?)

12/04/2006 5:18 PM  
Blogger Frank said...

Lyria: regarding the remote control, that is a great example, and illuminates a gendered aspect of equality I'd elided. The remote's progeny (TIVO) may also undermine the classic "free television" model, with potentially bad effects on those who can't afford cable. (I say only potentially bad b/c it's hard for me to frame most TV viewing as a good!)

So I should clarify that I'm most concerned about equality here as a placeholder for "convergence of living standards and life chances." (As Westen's great article "The Empty Idea of Equality" showed, it's good to get clear on one's use of equality at the outset!)

As for what lawyers can add: Yes, I'm emphasizing here the evaluation of the social benefits and costs of technologies, rather than the legal methods of maximizing the former and minimizing the latter. But I will get into that latter bit later. I think there a number of subtle and effective ways of proposing equality-promoting legal reform, particularly in the IP and health areas I care about most.

12/04/2006 5:26 PM  
Blogger Lyria Bennett Moses said...

Frank, you and I must be on at the same time. One comment on the last post - do we end up with more than "the means by which power is asserted leads to inequality"? True, but hardly controversial.

12/04/2006 5:27 PM  

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