Data-driven processes extend deeply into contemporary political economies, structuring flows of economic and social activity in ways both seen and unseen. Those processes have fueled growing interest by scholars and policymakers in the idea of infrastructure, both as an analytical construct and as an object of governance. In this chapter, I use the relationship(s) between data and mobility through physical spaces to explore why the characterization of data as infrastructure might matter for law- and policy-makers. As sets of structured data flows layered over other infrastructures have multiplied and intersected with practices of data extraction and appropriation, some of those data flows—in particular, data flows maintained by entities with the resources to manipulate them in real time and at scale—have come to function as infrastructures in their own right. These shifts have destabilized existing settlements regarding the movement of people and goods. Data infrastructures (are designed to) scale both vertically and laterally; they are nimble, flexible, and adaptable to new uses. Therefore, although they lack the brute fixity of physical infrastructures such as roadways and bridges, they facilitate assertions of power in ways that physical infrastructures alone cannot, and they are also vulnerable to commandeering and cooptation. The infrastructure lens helps to explain some of the challenges that efforts at post hoc regulatory supervision of platform activities have faced, and it also suggests some important questions about the newer, platform-specific regulatory models that are now beginning to emerge.

Abstract In capitalist political economies, the emergence of informational and informationally mediated modes of development has produced important changes in the organization of economic and social activity that are best understood via a chemical analogy: as a phase shift in the nature and structure of interactions that dramatically alters systemic behaviour. This chapter first sketches two interlinked sets of changes that are central to the phase shift to informational capitalism: the data-driven, multi-dimensional commodification of economic and social resources and the pervasive embedding of economic and social relations in digital platforms. It then sketches a preliminary account of the implications of the phase shift for theories of digital constitutionalism.

This chapter explores the implications of the “doughnut” model of sustainable economic development for efforts to strike the appropriate balance between surveillance and privacy. Among environmental economists and some city planners, Kate Raworth’s (2017) theory of “doughnut economics” is all the rage. Raworth argues that, in an era when human well-being depends on sustainable development rather than on unlimited growth, economics as a discipline can no longer embrace models of welfare oriented exclusively toward the latter. As an alternative model to the classic upward-trending growth curve, she offers the doughnut: an inner ring consisting of the minimum requirements for human wellbeing, a middle band consisting of the safe and just space for human existence, and an ecological ceiling above which continued growth produces planetary disaster. I will argue, first, that a similarly doughnut-shaped model can advance conceptualization of the appropriate balance(s) between surveillance and privacy, and second, that taking the doughnut model seriously suggests important questions about the uses, forms, and modalities of legitimate surveillance.

Work within the emerging field of surveillance studies calls into question the implicit linkages between surveillance, visual observation, and centralization that the conventional metaphors for privacy invasion have tended to reinforce. Since the US legal system purports to recognize an interest in spatial privacy, it is useful to begin there. Doctrinally, whether surveillance invades a legally recognized interest in spatial privacy depends in the first instance on background rules of property ownership. The information privacy law project has tended to ratify this omission, precisely because its primary interest has been information rather than the bodies and spaces to which it pertains. Many information privacy theorists criticize spatial metaphors in privacy discourse, arguing that they muddy rigorous analysis of privacy issues in the information age. Conceptualizing the privacy interest as having an independently significant spatial dimension explains aspects of surveillance that neither visibility nor informational transparency can explain.

Legal scholarship on the encounter between networked digital technologies and law has focused principally on how legal and policy processes should respond to new technological developments and has spent much less time considering what that encounter might signify for the shape of legal institutions themselves. This essay focuses on the latter question. Within fields like technology studies, labor history, and economic sociology, there is a well-developed tradition of studying the ways that new information technologies and the “control revolution” they enabled—in brief, a quantum leap in the capacity for highly granular oversight and management—have elicited long-term, enduring changes in the structure and operation of economic organizations. I begin by considering some lessons of work in that tradition for law understood as a set of organizations constituted for the purpose of governance. Next, I turn the lens inward, offering some observations about techlaw scholarship that are essentially therapeutic. The disruptions of organizational change have affected scholars who teach, think, and write about techlaw in ways more profound than are commonly acknowledged and discussed. It seems fitting, in a symposium dedicated to Joel Reidenberg’s life and work, to use the process of grief as a device for exploring the arc of techlaw scholarship over its first quarter century. The fit is surprisingly good and the takeaways relatively clear: If, as I intend to suggest, the organizational forms that underpin our familiar legal institutions have been in the process of evolving out from under us, we still have choices to make about how legal institutions optimized for the information economy will be constituted. Finally, I identify two sets of important considerations that should inform the processes of organizational and institutional redesign.

According to conventional wisdom, legislative efforts to limit platform-based electoral manipulation—including especially laws that go beyond simply mandating additional disclosure about advertising expenditures—are most likely doomed to swift judicial invalidation. In this Essay, I bracket questions about baseline First Amendment coverage and focus on the prediction of inevitable fatality following strict scrutiny. Legislation aimed at electoral manipulation rightly confronts serious concerns about censorship and chilling effects, but the ways that both legislators and courts approach such legislation will also be powerfully influenced by framing choices that inform assessment of whether challenged legislation is responsive to claimed harms and appropriately tailored to the interests it assertedly serves. I identify three frames conventionally employed in evaluating the design of speech regulation—the distribution bottleneck, the rational listener, and the intentional facilitator—and explain why each is ill-suited to the platform-based information environment, which presents different incentives and failure modes. In their place, I offer the platform itself as a new frame. I identify the harms and interests that frame brings into focus and offer some preliminary thoughts on the kinds of legislation it might permit.

This chapter considers the changing roles and forms of information property within the political economy of informational capitalism. I begin with an overview of the principal methods used in law and in media and communications studies, respectively, to study information property, considering both what each disciplinary cluster traditionally has emphasized and newer, hybrid directions. Next, I develop a three-part framework for analyzing information property as a set of emergent institutional formations that both work to produce and are themselves produced by other evolving political-economic arrangements. The framework considers patterns of change in existing legal institutions for intellectual property, the ongoing dematerialization and datafication of both traditional and new inputs to economic production, and the emerging logics of economic organization within which information resources (and property rights) are mobilized. Finally, I consider the implications of that framing for two very different contemporary information property projects, one relating to data flows within platform-based business models and the other to information commons.

Over the last half century, institutions for transnational economic governance have multiplied. Although networked governance institutions differ from each other in many ways, they share a common structure: they are organized as networks constituted around standards. Each of the scholarly literatures that has grown up around the various institutions described in this chapter has grasped some essential aspects of the network-and-standard dynamic but not others. This chapter juxtaposes the various networked governance processes and treats them explicitly as iterations of a new — or, more precisely, emergent — legal-institutional form. It also considers the relationship(s) between that institutional form and new platform entities that wield enormous de facto power — though not yet formally acknowledged governance authority—based on their control of infrastructures and protocols for networked, social communication.

This chapter explores changes in institutions and processes for dispute resolution. The gradual but accelerating movement to informational capitalism has confronted the judicial system with two large and interrelated problems: a proliferation of asserted harms that are intangible, collective, and highly informationalized; and an unmanageably large and ever-increasing number of claimants and interests. Emergent responses to those problems reflect the ascendancy of managerial ideologies about the nature of effective governance and the universe of feasible institutional strategies and practices. The managerial turn reinforces the traditional emphasis on concrete, individualized claims and frames dispute resolution problems as problems of production at scale to be addressed using techniques for input sorting and supply chain management. The judicial system—conceived throughout the industrial era as a monolithic dispenser of one-size-fits-all justice—is being reconceived and re-engineered along streamlined and diversified lines that are optimized to the interests of powerful information-economy actors.

Abstract The problem of theorizing privacy moves on two levels, the first consisting of an inadequate conceptual vocabulary and the second consisting of an inadequate institutional grammar. Privacy rights are supposed to protect individual subjects, and so conventional ways of understanding privacy are subject-centered, but subject-centered approaches to theorizing privacy also wrestle with deeply embedded contradictions. And privacy’s most enduring institutional failure modes flow from its insistence on placing the individual and individualized control at the center. Strategies for rescuing privacy from irrelevance involve inverting both established ways of talking about privacy rights and established conventions for designing institutions to protect them. In terms of theory, turning privacy inside out entails focusing on the conditions that are needed to produce sufficiently private and privacy-valuing subjects. Institutionally, turning privacy inside out entails focusing on the design, production, and operational practices most likely to instantiate and preserve those conditions.

For several hundred years, political philosophers and legal theorists have conceptualized media technologies as ‘technologies of freedom’. Some things about that equation have not changed; certainly, access to information, the capacity for reason, self-determination, and democratic self-government are inescapably interrelated. In other respects, however, the operation of contemporary platform-based media infrastructures has begun to mimic the operation of the collection of brain structures that mid-twentieth-century neurologists christened the limbic system and that play vital roles in a number of precognitive functions, including emotion, motivation, and habit-formation. Today’s networked information flows are gradually being optimized for subconscious, affective appeal, and those choices have proved powerful in ways their designers likely did not intend or expect.

This chapter considers the effects of digital disruption on the recognition and enforcement of fundamental human rights. It maps three overlapping and mutually reinforcing sets of trends. First, traditional mechanisms for defining and enforcing human rights have begun to unravel, and that process has created points of entry for new discourses and practices organized around managerial and technical expertise and optimistic notions of corporate social responsibility. Second, strategies for bottom-up cultural and political production have enabled powerful new forms of resistance but have been far less successful at underwriting new institutional forms dedicated to ensuring more widespread protections for all people. In particular, platform-based, massively intermediated media infrastructures both facilitate and co-opt bottom-up cultural and political production and amplify both benevolence and malevolence. Third, other emergent discourses about the nature and importance of fundamental rights reinforce the normative authority of powerful, nonhuman actors.

Writing at the dawn of the digital era, John Perry Barlow proclaimed cyberspace to be a new domain of pure freedom. Addressing the nations of the world, he cautioned that their laws, which were “based on matter,” simply did not speak to conduct in the new virtual realm. As both Barlow and the cyberlaw scholars who took up his call recognized, that was not so much a statement of fact as it was an exercise in deliberate utopianism. But it has proved prescient in a way that they certainly did not intend. The “laws” that increasingly have no meaning in online environments include not only the mandates of market regulators but also the guarantees that supposedly protect the fundamental rights of internet users, including the expressive and associational freedoms whose supremacy Barlow asserted. More generally, in the networked information era, protections for fundamental human rights — both on- and offline — have begun to fail comprehensively. Cyberlaw scholarship in the Barlowian mold isn’t to blame for the worldwide erosion of protections for fundamental rights, but it also hasn’t helped as much as it might have. In this essay, adapted from a forthcoming book on the evolution of legal institutions in the information era, I identify and briefly examine three intersecting flavors of internet utopianism in cyberlegal thought that are worth reexamining. It has become increasingly apparent that functioning legal institutions have indispensable roles to play in protecting and advancing human freedom. It has also become increasingly apparent, however, that the legal institutions we need are different than the ones we have.

This article discusses the role of media and communications in contributing to social progress, as elaborated in a landmark international project – the International Panel on Social Progress. First, it analyses how media and digital platforms have contributed to global inequality by examining media access and infrastructure across world regions. Second, it looks at media governance and the different mechanisms of corporatized control over media platforms, algorithms and content. Third, the article examines how the democratization of media is a key element in the struggle for social justice. It argues that effective media access – in terms of distribution of media resources, even relations between spaces of connection and the design and operation of spaces that foster dialogue, free speech and respectful cultural exchange – is a core component of social progress.

Within the political economy of informational capitalism, commercial surveillance practices are tools for resource extraction. That process requires an enabling legal construct, which this essay identifies and explores. Contemporary practices of personal information processing constitute a new type of public domain—a repository of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity. As a legal construct, the biopolitical public domain shapes practices of appropriation and use of personal information in two complementary and interrelated ways. First, it constitutes personal information as available and potentially valuable: as a pool of materials that may be freely appropriated as inputs to economic production. That framing supports the reorganization of sociotechnical activity in ways directed toward extraction and appropriation. Second, the biopolitical public domain constitutes the personal information harvested within networked information environments as raw. That framing creates the backdrop for culturally situated techniques of knowledge production and for the logic that designates those techniques as sites of legal privilege.

Before exploring the questions about creativity, subjectivity, and sociotechnical ordering raised in Chapter 1, it is useful to establish a general framework for those inquiries. I have promised an account of the “networked self,” related in some way to something called the “play of everyday practice.” Those terms are not usual in legal scholarship about information policy. For most legal scholars, the most salient aspect of the networked information society is the network itself and the new patterns of cultural participation that it enables. As we have seen, legal scholars have used theoretical frameworks derived from liberal political theory—most notably, frameworks organized around expressive liberty and market exchange—to impute overarching structure and purpose to those patterns. For the most part, they have conceptualized the activities of network users as occurring in an abstract, disembodied plane, detached from material and geographic contexts.

Mireille Hildebrandt’s Smart Technologies and the End(s) of Law (2015) raises questions for law that are best characterized as meta-institutional. This review essay considers the implications of Hildebrandt’s work for the conceptualization of fundamental rights. One consequence of the shift to a world in which smart digital technologies continually, immanently mediate and preempt our beliefs and choices is that legal discourses about fundamental rights are revealed to be incomplete along a dimension that we have simply failed to recognize. To remain effective in the digital age, rights discourse requires extension into the register of affordances.