Thursday, February 26, 2009

Are We All Control Freaks Now?

Earlier this month, Facebook quietly changed its terms of service and waded into what I will call the “control wars” over personal information. Facebook’s changes would enhance its control over users posted information, including material that had been deleted. The response was swift and angry. A Facebook Group, “People Against the New Terms of Service,” attracted over 130,000 members to pressure Facebook to revert to its old terms of use. The Electronic Privacy Information Centre (EPIC) threatened to file a complaint with the Federal Trade Commission. Facebook backed down.

This incident is interesting for many reasons. For one, it illustrates public anxieties regarding personal information. Tracked by public surveillance cameras, profiled by marketers, tagged by Facebook friends—increasingly we fear that information and communications technology has placed our personal information beyond our control. And, given that one of the most popular definitions of privacy is “control over personal information”, any loss of control is viewed as a problematic loss of privacy.

The Facebook incident also highlights the accepted solutions to this problem. The way to halt the rapid erosion of privacy is to provide individuals with more control over their personal information. This has both a technological and a legal aspect. The technological aspect can be seen by the use of technology itself (a Facebook group) to mobilize individuals into an effective pressure group. The legal aspect can be seen through the threat of legal action. In fact, EPIC claims that this incident is evidence of the need for more comprehensive privacy laws in the United States. Canada has such legislation, including our federal Personal Information Protection and Electronic Documents Act (PIPEDA), which aims to provide individuals with greater control over the collection, use and disclosure of their personal information. Even before this recent controversy, the Canadian Internet and Public Policy Clinic (CIPPIC) filed a complaint with the federal Privacy Commissioner alleging that Facebook was in violation of its obligations under PIPEDA.

I am a supporter of comprehensive privacy legislation and, as a Facebook user, happy that Facebook reversed its decision. Nonetheless I think we should be concerned about the prevalence of “control” as the paradigm for both the problem of, and solution to, information and communication technology.

What interests me here is the striking parallels between contemporary privacy angst and technological fears from an earlier era. Like the “information age,” the modern industrial age engendered dystopian visions of out-of-control technology, technology that did not simply herald a new age of freedom but rather brought with it new types of threats to human autonomy, health, communities and the environment. This spawned a great deal of academic commentary across many disciplines; I want to focus here specifically on the philosophy of technology and what it can both contribute to, and learn from, the control wars.

Hans Achterhuis usefully distinguishes first and second generation philosophers of technology. Perhaps the most influential philosopher of the first generation is Martin Heidegger. According to Heidegger, the instrumental conception of technology—that technology is simply a means that we create and use to further our chosen ends— blinds us to the true essence of technology. As he famously—and rather cryptically—argued in The Question Concerning Technology, “the essence of technology is by no means anything technological.” Instead, the essence of technology is more akin to what we might now call a cultural paradigm that conditions us to view the world as resources at our disposal. Moreover, for him the essence of technology is intrinsically tied to the project of modernity itself. In this way, his work fits within a general category of primarily European thinkers who made technology an explicit theme in their reflections and who argued—although each in quite different terms—that the significance of modern technology does not lie in specific features of its machinery but rather in a kind of rationality and cultural milieu intimately linked with the project of modernity and the Enlightenment values that animate it but simultaneously threatening to undermine human freedom. In addition to Heidegger, Jacques Ellul, Gabriel Marcel, and the Frankfurt School were all influential in this regard.

Second-generation philosophers of technology share a general rejection of instrumental definitions of technology but have largely tried to distance themselves from the strong dystopian flavour of these earlier more radical techniques. According to these second-generation thinkers, these earlier critiques fail because they are essentialist in talking about “Technology” rather than “technologies,” and determinist in not seeing the myriad ways in which human contexts and values shape and constrain the uses of technology. In a world where modern technology is ubiquitous and most often welcomed, they argue, we need a more nuanced view of technology, one that has a place to laud the victories of technology and a program for technological design that enhances democratic and ethical values. Indeed, as Hans Achterhuis has argued, second-generation philosophers of technology have largely taken an “empirical turn.”

This second-generation empirical turn can enrich legal discussions of technology by opening legal discussion to the insights of theorists from a variety of disciplines who have indicated that technology is in fact not neutral, that it often embodies important social and political values and therefore can have unintended and undesirable effects beyond simply physical consequences. It can also point to the ways in which we have the resources to think about, and build, technologies in a number of different ways and give us a richer basis upon which to think about law’s role in this.

However, in distancing itself from these various elements of earlier critiques, second generation philosophers of technology have largely lost sight of the normative elements of earlier critiques. The danger is that in showing how technologies are shaped by a complex of social forces, as well as how they open up a plurality of options, these theories fall into a kind of descriptive obscurity. Indeed, Langdon Winner accuses some expressions of this “empirical turn” of ignoring—even disdaining—any normative inquiry into technology in favour of highlighting the interpretive flexibility of any particular technology. As Winner argues, the important question is not how technology is constructed but which norms we should invoke to evaluate technologies, their design, implementation, and effects.

This is where legal scholars need to intervene.

What some of the legal debates regarding technology highlight is that it is not clear that the traditional normative strategies we might employ to evaluate technologies are adequate. And many of these normative strategies center on a particular idea of the self. For example, in an earlier posting, Frank Pasquale indicated that the question of the acceptance of self-enhancing technologies is not being driven by the technology itself but rather by a conception of the self that should be questioned. Kieran Tranter wrote of the need for alternative stories of self-creation.

These observations—with which I agree—suggest that we should rethink the empirical turn. What the first generation of philosophers of technology understood was that at the root of their questioning of technology lay the need to question the modern self itself. At the end of the day, this was Heidegger’s message regarding technology: the instrumental definition of technology blinds us to the real essence of technology but the supreme danger of this is that we are thereby also blinded to the true nature of what it means to be a human being. Discussions of controlling technology – through law or other means—misses this entirely and in fact risks perpetuating a problematic view of the self.

In my next post, I will try to show how this insight can be helpful in understanding the limits of a privacy paradigm centered on control of personal information even if we don’t return to the radical excesses of first generation philosophy of technology.

But in closing let me respond to one possible objection to my claim that law is an important site for normative engagement with technology and, in particular, claims of control. One might ask whether law itself is a technology and therefore not something that can be easily and straightforwardly enlisted to judge other technologies. Ellul, who has already been mentioned in a number of previous posts, himself wrote of “judicial technique,” placing it in the realm of calculative rationality that characterizes other techniques. Nonetheless, because law is a site of justice it is also in a kind of privileged position in relation to technology as that which can never fully become technique. He argues:

Judicial technique is in every way much less self-confident than the other techniques, because it is impossible to transform the notion of justice into technical elements. Despite what philosophers may say, justice is not a thing which can be grasped or fixed. If one pursues genuine justice (and not some automatism or egalitarianism), one never knows where one will end. A law created as a function of justice has something unpredictable in it which embarrasses the jurist. Moreover, justice is not in the service of the state; it even claims the right to judge the state. Law created as a function of justice eludes the state, which can neither create nor modify it. The state of course sanctions this situation only to the degree that it has little power or has not yet become fully self-conscious; or to the degree that its jurists are not exclusively technical rationalists and subordinated to efficient results. Under these conditions, technique assumes the role of a handmaiden modestly resigned to the fact that she does not automatically get what she desires. (The Technological Society, p. 292)

One might say that justice eludes control and we would do well to attend to this and its significance.


Blogger Art said...

Lisa: I really think it is helpful to discuss the tension among these different theories and perspectives on technology and human autonomy, and how this can assist legal thinkers.

I tend to agree with the views of writers like Weber and Ellul that technological development is embedded within the ongoing rationalinalization/bureaucratization/compartmentalization of society. But I also think they go too far in pre-judging the problematic aspects of this development as they seem to be suggesting that this process is inherently dehumanizing.

One of the prominent schools of thought that criticizes this perspective comes out of Science and Technology Studies (STS) that tries to show that history, social developments and technology are all inter-rated instead of one process driving the other.

But I also suspect that Weber and Ellul would look at STS and similar perspectives and say: "Aha! Isn't it obvious that STS and similar attempts are part of reductionist efforts to distill complex factors into quantifiable results! These attempts are merely part and parcel of the ongoing rationalization of our world that is taking us away from understanding our authentic humanity."

Despite these possible ghostly objections, I tend to buy into the STS agenda as well as the attempts by others like Manuel Castells to chart a middle-ground between the instrumentalist and substantive visions of technology. Andrew Feenberg is another writer who is trying to revise the earlier views from the critical theorists (including the Frankfurt School mentioned in the post) to chart this middle-ground.

From STS, for instance, we get a view of 'soft determinism' (versus full-blown technological determinism) that accepts technological frames guide future developments, but also tries to understand how human agency influences these developments.

I've found this sort of middle-ground perspective to be more helpful in the development of law and tech theories and perspectives.

2/27/2009 9:17 AM  
Blogger Kieran Tranter said...

Lisa - You are charting an important contribution here. I am interested in your adoption of Achterhuis's taxonomic organisation of technology studies which has a philosophical movement branching into subsequent, and quite different empirical and critical projects, because of its parallels in law. Without doing the detailed analysis I suspect that this narrative of philosophic leading to empirical and critique, is a narrative that can be read into legal thought; with the Realists of the 1920-1930 birthing empirical projects (law and society; law and economics) and critical projects (CLS; feminist legal scholarship). My reason for raising this is your reminder of Ellul's account of judicial technique. In positing a dual account of law; law as calculable decision that must be made and law as justice which involves an element of undecidablity, the bare ingredients that Derrida used in his 1991 "Force of Law" appear present. Is it possible that the train of thought in law following Derrida could be re-evaluated as a struggle with the technicity of law?

3/01/2009 1:01 PM  
Blogger Lisa Austin said...

Hi Art,

Thanks for the comment. I too am attracted by theorists looking for alternatives to the very extreme critiques of theorists like Ellul. And I also agree that the work of STS can be very helpful to many debates and that legal theorists should look to it more. However, people like Andrew Feenberg and others are very keen to endorse a kind of radical populist politics as the answer to all normative question and the lawyer in me sees this as too simplistic. I think that legal theorists have a lot to offer to these debates--not just a lot to gain by looking beyond the boundaries our discipline.

3/03/2009 8:28 AM  
Blogger Lisa Austin said...


I agree quite a lot with your sense that we need to look at the conception of law that we are using to evaluate technology. To me,Derrida is interesting because he is heavily influenced by Levinas, who was a major critic of Heidegger. Therefore if you are trying to chart a different response to technology than something like Heidegger's critique, I think Levinas is an extremely important figure (and I prefer Levinas on his own rather than Derrida's uptake). I have actually written about some of this (currently unpublished) and would be happy to share it with you.

3/03/2009 8:31 AM  

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