Monday, February 02, 2009

Instrumental and Substantive Theories of Technology

In my first post, I'll set out some background on different views on the relationship between human autonomy and technology. Technology thinkers are sometimes broken down into two groups: instrumental and substantive theorists (for discussion, see, for example, Andrew Feenberg, Transforming Technology: A Critical Theory Revisited (Oxford University Press, 2002).

Generally speaking, instrumental theories (or perspectives) tend to treat technology as a neutral tool without examining its broader social, cultural and political impacts. The instrumentalists are often identified with strains of thought that respect human autonomy in matters of technology, in part because technology itself is perceived to be neutral in its impact on human affairs, and in part because of the emphasis upon human willpower to decide whether to adopt technologies.

In contrast, substantive theories emphasize the ways in which technological systems (or 'structure') can have a substantive impact on individual and community interests that may differ from their intended impact: substantive theorists sometimes emphasize how technological structure can overcome human willpower.

Consider cell phones. They were initially developed to enable remote wireless communication. But most cell phones today have embedded GPS chips that give off information concerning the cell user's geographic location (this information is often stored in permanent digital format by telephone companies). Police sometimes tap into this information as part of their investigation into alleged criminal/terrorist activities. In other words, we started out with a communication device but now carry around a state-tracking device.

How can these theories or perspectives influence legal analysis?

Instrumentalists, like Alfred E. Neuman, would tend to say, 'What, me worry?' After all, an instrumentalist might maintain, individuals can choose to carry a cell phone (or not), and hence there is no real policy problem.

A substantive theorist, on the other hand, might worry that our societies are now filled with these tracking devices, potentially leading to a variety of state abuses (for example, a government could develop software to scan through vast telco databases to track the movements of individuals despite no evidence of individual wrong-doing). While it is true that individuals can choose not to carry a cell phone, the costs of doing so may be prohibitive (for example, a workplace may require a cell phone) or a cultural norm may encourage cell phone usage (ask any teenager).

My co-author Jason Pridmore and I reviewed (at pp. 474-494) some of the important works in both theoretical camps in an article entitled A Synthetic Theory of Law and Technology. The paper came out in a symposium issue of law and technology perspectives. In this work, we used a synthesis of instrumental and substantive perspectives to inform legal analysis (which I blogged about previously).

In my next post, I'll discuss how the substantive theories can be used to help develop laws and policies in the context of post-9/11 government surveillance surveillance.

(On a related note, we hosted a law and technology art exhibition at our law school a few years ago, and my poster submission lex ex machina (Latin for 'law in the machine') explored how the machine-like attributes of the law influence legal actors and the path of the law.)


Blogger Lyria said...

Thanks Art, both for your post and for organising the blog!

One perhaps pedantic point. While historically, technology theorists divided neatly into substantive and instrumental, I am not sure this is still the case. Certainly one can read something and point to a tendency in either direction, but many would agree that technology can have hidden negative effects and that political/legal/social choices have some impact on technology's development.

To take your example, consider cell phones. There is autonomy in whether to buy one, and consumer preferences/cultural norms have led to a range of features such as cameras. On the other hand, a person who doesn't like cell phones may now "need" one for work or "need" one due to social expectations. Some will be "forced" to carry around a cell phone, will all the interruptions and inconveniences that entails. We have (collectively) substantial "control" over cell phone design, yet some are forced to carry or be disrupted by a technology they despise.

What is interesting though is that cell phones haven't marketed phones with enhanced privacy (ie created a different kind of phone/network that makes phones harder to track). I have no idea as to whether this is technically possible, but the point is that no cell phone company would do it. It simply isn't as marketable as better design, an extra megapixel on the camera, a clearer screen or better software. In other words, the loss of privacy due to mobile phone usage may not be a question of technology trampling social preferences, but the lack of strong preferences with regards to privacy.

Which leads me to a point that Andrea Matwyshyn has made - even law/privacy scholars sometimes have shopping discount cards that track purchases in exchange for saving a few dollars a week. Most people would refuse to pay extra for a "privacy enhanced" phone because they aren't worried about the government tracking them. Perhaps the problem is not loss of autonomy, but rather the fact that people don't care about these sorts of things as much as lawyers do?

2/02/2009 5:15 PM  
Blogger Arthur Cockfield said...

Thanks for your comment Lyria (and am looking forward to your upcoming blog).

I agree that there is a blur between the instrumental and substantive schools of thought. We discuss in our paper how the division between the two schools is, at least to a certain extent, an artificially concocted dichotomy. But I still think it is helpful to look to both perspectives for guidance in terms of understanding the role of technology and how it interacts with human autonomy.

I also agree that privacy interests and expectations are tricky to gauge. As you indicate, most folks don't seem to care that cell phones give off information about their geographic location. I once heard a privacy researcher joke(?) that individuals seem prepared to give up their souls for a Big Mac after he looked at the behavior of web users who were giving away personal information for tiny amounts of free stuff from commercial websites.

In my next post though, I'll discuss some empirical support for the view that individuals (other than privacy-obsessed lawyers!)in Canada and elsewhere do not want to give up privacy rights in the context of state investigations -- to be distinguished from industry information collection practices.

2/03/2009 10:51 AM  

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