Social networking sites like Facebook are rapidly gaining in popularity. At the same time, they seem to present significant privacy issues for their users. We analyze two of Facebooks’s more recent features, Applications and News Feed, from the perspective enabled by Helen Nissenbaum’s treatment of privacy as “contextual integrity.” Offline, privacy is mediated by highly granular social contexts. Online contexts, including social networking sites, lack much of this granularity. These contextual gaps are at the root of many of the sites’ (...) privacy issues. Applications, which nearly invisibly shares not just a users’, but a user’s friends’ information with third parties, clearly violates standard norms of information flow. News Feed is a more complex case, because it involves not just questions of privacy, but also of program interface and of the meaning of “friendship” online. In both cases, many of the privacy issues on Facebook are primarily design issues, which could be ameliorated by an interface that made the flows of information more transparent to users. (shrink)

In the U.S., ‘employee wellness’ programs are increasingly attached to employer-provided health insurance. These programs attempt to nudge employees, sometimes quite forcefully, into healthy behaviors such as smoking cessation and exercise routines. Despite being widely promoted as saving on healthcare costs, numerous studies undermine this rationale. After documenting the programs’ failure to deliver a positive return on investment, we analyze them as instead providing an opportunity for employers to exercise increasing control over their employees. Based on human capital theory and (...) neoliberal models of subjectivity that emphasize personal control and responsibility, these programs treat wellness as a lifestyle that employees must be cajoled into adopting, extending the workplace not just into the home but into the bodies of workers, and entrenching the view that one belongs to one’s workplace. At the same time, their selective endorsement of health programs (many scientifically unsupported) produce a social truth of wellness framed as fitness for work. We conclude by arguing that the public health initiatives occluded by the private sector’s promotion of wellness programs would be a much better investment of resources. (shrink)

Foucault’s discussion of parrhēsia – frank speech – in his last two Collège de France lecture courses has led many to wonder if Foucault is pursuing parrhēsia as a contemporary strategy for resistance. This essay argues that ethical parrhēsia on either the Socratic or Cynical model would have little critical traction today because the current environment is plagued by problems analogous to those Plato thought plagued Athenian democracy. Specifically, authentication of parrhesiasts as a technique for authenticating their speech – the (...) specific problem that the move to ethical parrhēsia in ancient Greece was designed to solve – becomes intractable in a social media environment, even with the added Cynical move to pure visibility. The problem is that contemporary society overproduces visibility as a condition for participation, which means that the context for authenticating parrhesiastic speech is one in which visibility is banalized and in which there is a surplus of speech which presents as parrhesiastic. The problem of authentication is thus a serious one, one which social media makes particularly intractable. (shrink)

The “privacy paradox” refers to the discrepancy between the concern individuals express for their privacy and the apparently low value they actually assign to it when they readily trade personal information for low-value goods online. In this paper, I argue that the privacy paradox masks a more important paradox: the self-management model of privacy embedded in notice-and-consent pages on websites and other, analogous practices can be readily shown to underprotect privacy, even in the economic terms favored by its advocates. The (...) real question, then, is why privacy self-management occupies such a prominent position in privacy law and regulation. Borrowing from Foucault’s late writings, I argue that this failure to protect privacy is also a success in ethical subject formation, as it actively pushes privacy norms and practices in a neoliberal direction. In other words, privacy self-management isn’t about protecting people’s privacy; it’s about inculcating the idea that privacy is an individual, commodified good that can be traded for other market goods. Along the way, the self-management regime forces privacy into the market, obstructs the functioning of other, more social, understandings of privacy, and occludes the various ways that individuals attempt to resist adopting the market-based view of themselves and their privacy. Throughout, I use the analytics practices of Facebook and social networking sites as a sustained case study of the point. (shrink)

Defenders of strong Intellectual Property rights or of a nonutilitarian basis for those rights often turn to Locke for support.1 Perhaps because of a general belief that Locke is an advocate of all things proprietary, this move seldom receives careful scrutiny. That is unfortunate for two reasons. First, as I will argue, Locke does not issue a blank check in support of all property regimes, and the application of his reasoning to intellectual property would actually tend to favor a substantially (...) limited rights regime. Second, the attempt to understand intellectual property as an instance of Lockean property, though admittedly anachronistic, offers an opportunity to further our understanding of Locke's own thought. My major claim will be twofold: on the one hand, intellectual property would be an almost paradigmatic case of Lockean property; on the other hand, Locke's provisos—specifically the widely neglected spoilage proviso—would sharply limit the scope of any entitlements. My secondary claim will accordingly be that the spoilage proviso's neglect is undeserved, and that it deserves a more central place in our understanding of Locke. I will not here address whether Locke provides the right way to think about property, whether IP is a good idea, or whether property rights ought to include a right to destroy; my concern is to elucidate Locke's arguments and then to block this application of them. (shrink)

This paper situates the data privacy debate in the context of what I call the death of the data subject. My central claim is that concept of a rights-bearing data subject is being pulled in two contradictory directions at once, and that simultaneous attention to these is necessary to understand and resist the extractive practices of the data industry. Specifically, it is necessary to treat the problems facing the data subject structurally, rather than by narrowly attempting to vindicate its rights. (...) On the one hand, the data industry argues that subjects of biometric identification lack legal standing to pursue claims in court, and Facebook recently denied that that its facial recognition software recognizes faces. On the other hand, industry takes consent to terms of service and arbitration clauses to create enforceable legal subject positions, while using promises of personalization to create a phenomenological subject that is unaware of the extent to which it is being manipulated. Data subjects thus have no legal existence when it is a matter of corporate liability, but legal accountability when it is a matter of their own liability. Successful reform should address the power asymmetries between individuals and data companies that enable this structural disempowerment. (shrink)

Following Foucault’s remarks on the importance of architecture to disciplinary power, this paper offers a typology of power relations expressed in different models of Internet governance. Infrastructure governance understands the Internet as a common pool or public resource, on the model of traditional infrastructures like roads and bridges. Modulation governance, which I study by way of Net Neutrality debates in the U.S., understands Internet governance as traffic shaping. Portal governance, which I study by way of data collection policies of dominant (...) platform companies, understands the Internet as creating a user experience that facilitates data mining. The latter two are forms of architectural disciplinary power that undermine the first. I then argue that the rise of portal and modulation governance primarily serves to remake parts of civil society by fostering market norms of consumption and entrepreneurialism. In that sense, efforts to shape Internet architecture need to be understood as techniques of subjectification. (shrink)

Artificial intelligence (AI) and machine learning (ML) systems increasingly purport to deliver knowledge about people and the world. Unfortunately, they also seem to frequently present results that repeat or magnify biased treatment of racial and other vulnerable minorities. This paper proposes that at least some of the problems with AI’s treatment of minorities can be captured by the concept of epistemic injustice. To substantiate this claim, I argue that (1) pretrial detention and physiognomic AI systems commit testimonial injustice because their (...) target variables reflect inaccurate and unjust proxies for what they claim to measure; (2) classification systems, such as facial recognition, commit hermeneutic injustice because their classification taxonomies, almost no matter how they are derived, reflect and perpetuate racial and other stereotypes; and (3) epistemic injustice better explains what is going wrong in these types of situations than does the more common focus on procedural (un)fairness. (shrink)

Foucault’s discussion of parrhēsia – frank speech – in his last two Collège de France lecture courses has led many to wonder if Foucault is pursuing parrhēsia as a contemporary strategy for resistance. This essay argues that ethical parrhēsia on either the Socratic or Cynical model would have little critical traction today because the current environment is plagued by problems analogous to those Plato thought plagued Athenian democracy. Specifically, authentication of parrhesiasts as a technique for authenticating their speech – the (...) specific problem that the move to ethical parrhēsia in ancient Greece was designed to solve – becomes intractable in a social media environment, even with the added Cynical move to pure visibility. The problem is that contemporary society overproduces visibility as a condition for participation, which means that the context for authenticating parrhesiastic speech is one in which visibility is banalized and in which there is a surplus of speech which presents as parrhesiastic. The problem of authentication is thus a serious one, one which social media makes particularly intractable. (shrink)

Introduction: The politics of construction -- A genealogical context of modern political thought -- More geometrico -- Nominalism redux -- The state of nature -- Constructing politics -- Conclusion: From erasing nature to producing the multitude.

The emergence of topics such as reprogenetics and genetic testing for hereditary diseases attests to the continued salience of Foucault's analyses of biopolitics. His various discussions pose at least two problems for contemporary appropriation of the work. First, it is unclear what the "life" on which biopolitics operates actually refers to.1 Second, it is unclear how biopolitics relates to the economy, either in the classical form of the family/household (oikos) or in the current form of neoliberalism.2 In what follows, I (...) argue, first, that modern biopolitics is marked less by the entry of biological life into the polis than by a new consideration of the form of life proper to humans. This is because Foucault's .. (shrink)

Foucault distanced himself from Marxism even though he worked in an environment—left French theory of the 1960s and 1970s—where Marxism was the dominant frame of reference. By viewing Foucault in the context of French Marxist theoretical debates of his day, we can connect his criticisms of Marxism to his discussions of the status of intellectuals. Foucault viewed standard Marxist approaches to the role of intellectuals as a problem of power and knowledge applicable to the Communist party. Marxist party intellectuals, in (...) his view, had developed rigid and universal theories and had used them to prescribe action, which prevented work on the sorts of problems that he uncovered—even though these problems were central to the development of capitalism. (shrink)

In U.S. v. American Library Association (2003), the Supreme Court upheld the Child Internet Protection Act (CIPA), which mandated that libraries receiving federal funding for public Internet access install content-filtering programs on computers which provide that access. These programs analyze incoming content, and block the receipt of objectionable material, in particular pornography. Thus, patrons at public libraries are protected from unintentionally (or intentionally) accessing objectionable material, and, in the case of minors, from accessing potentially damaging material. At least, that is (...) the official story. In this paper, I develop three points. (1) I argue that CIPA and ALA are better read as examples of the enforcement of a regime of normative sexuality. The question of minors accessing pornography is only relevant to the official story insofar as it provides a rhetorically persuasive example of deviance from that normative regime. CIPAs full target includes information about topics such as homosexuality and contraception. (2) Rather than (or in addition to) punishing deviances directly, CIPA attempts to constitute a “public” in which such deviancy can never occur in the first place. Hence, the designation of a “public” space serves to domesticate alternative sexualities and to sanitize that space of sexual difference. (3) This interaction at the border of the public and private spheres offers an opportunity to reflect on and underscore the ways that subject formation and subjectivity are mediated through technological artifacts like the Internet. (shrink)

This paper revisits Derrida’s and Deleuze’s early discussions of “Platonism” in order to challenge the common claim that there is a fundamental divergence in their thought and to challenge one standard narrative about the history of deconstruction. According to that narrative, deconstruction should be understood as the successor to phenomenology. To complicate this story, I read Derrida’s “Plato’s Pharmacy” alongside Deleuze’s discussion of Platonism and simulacra at the end of Logic of Sense. Both discussions present Platonism as the effort to (...) establish a representative order (of original ideas and authorized reproductions of them) with no excess or outside (simulacra, or ideas that cannot be tied to an eidos). Since such pure representation is impossible, Platonism functions by means of the violent suppression of the simulacra and pharamakoi that exceed its eidetic structures. To overcome Platonism is thus not to reverse it, but to establish something like a practice of counter-memorials: detecting, exhuming, and writing back textual traces of what Platonism excludes. I then briefly apply this practice to narratives about the history of deconstruction, and suggest that they tend to occlude precisely the materialist elements of that history, as (for example) the importance of Spinoza as an interlocutor. In other words, the emerging canonical narrative about deconstruction runs the risk of repeating the Platonic gesture that Derrida spent his career writing against. (shrink)

This paper analyzes Hobbes’s understanding of signification, the process whereby words come to have meaning. Most generally, Hobbes develops and extends the nominalist critique of universals as it is found in Ockham and subsequently carried forward by early moderns such as Descartes. Hobbes’s radicality emerges in comparison with Ockham and Descartes, as, unlike them, Hobbes also reduces the intellectual faculty entirely to imagination. According to Hobbes, we have nothing in which a stabilizing, pre-discursive mental language could inhere. Hobbes thus concludes (...) that all thinking is affective and semiotic, and depends on the regulation of conventionally established regimes of signs. Establishing this regulation is one of the central functions of the Hobbesian commonwealth. (shrink)

One strategy for indigenous producers competing with global capital is to obtain geographic source protection (a form of trademark) for products traditionally associated with a cultural grouping or region. The strategy is controversial, and this article adds an additional reason to be cautious about adopting it. Specifically, consumers increasingly consume brands not for the products they designate but for the affiliation with the brands themselves. Since the benefits of source protection depend upon a consumer's desire to have a product actually (...) from that source community, if consumers care more about the brand designation than the actual source, then those benefits will be more difficult to realize. In such an environment there would be tremendous pressure both to produce products that conform to (often exoticized) western images of cultures and to create property rights in the culture itself, empowering elites to further marginalize and suppress dissenting views. (shrink)

Hobbes rejects the Aristotelian political animal, a move that enables a malleable psychology in which we are driven by our passions and responses to external objects. Our psychology is accordingly overdetermined by our socio-cultural environment, and managing that environment becomes a central task of the state. A particular problem is what I call the “ontological illusion,” the constitutive human tendency to ontologize products of the imagination. I argue that Hobbes’s strategies for managing the ontological illusion govern part four of Leviathan. (...) Those chapters are intended to convince elites that crediting ontological illusions in policy is disastrous, as his discussion of demonology and its thinly veiled references to witchcraft persecutions readily illustrates. (shrink)

This paper examines Hobbes’s Leviathan with reference to seventeenth-century discussions of Job to determine what Hobbes’s titular reference might be intended to accomplish. I argue that for a seventeenth-century reader, Job stands not just for patience in suffering but also for a warning against the hubris of attempting to reason with God. In this light, the reference suggests a Hobbesian immanent critique of scholasticism for having the arrogance to presume it knows God’s way on earth. This gesture both creates the (...) discursive space for a secular politics, and underlines the cohesion of the early and late parts of Leviathan. (shrink)

This dissertation is a study of the nature and development of "modern" political thought, typical features of which include the "state of nature" and "social contract." Specifically, I argue that modern thought is constructive, which is to say that thinking is seen as, at least to some extent, generative of its objects. I focus primarily on Hobbes and Marx as liminal thinkers in the development of modern political thought. I begin with a discussion of the nature of construction in modern (...) thought generally, and in Hobbes specifically. I then ground the claim that Hobbes's texts are originary for modern political thought in two ways. First, I show how many of the methodological principles explicitly adopted by Hobbes are implicitly assumed by Locke. Then, I differentiate Hobbesian metaphysical and epistemological assumptions from two alternate sets of assumptions which Hobbes viewed himself as opposing: Machiavellian virtu; and Christian, medieval neo-Platonism. I then read Hobbes's texts in their relation to Bacon's usage of construction and Hobbes's own development of the social contract. I then transition, via Hegel, to a study of Marx. After providing an account of Marx's early reaction to Hegel, I attempt to show that many of the objections Marx makes to Hegelianism are also made against modern political thought in general. I thus read sections of Marx's early works to illustrate his engagement with early modern thought, and to show how he characterizes this thought as a "despotism" because of its reliance on a "manufactured originary state." I then provide readings of Marx's dissertation critique of Democritus to develop more carefully what Marx means by an atomic or originary state; and of sections of the Holy Family to explore Marx's understanding of "history," and to show how that understanding differs from Hegel's. I conclude with an extended reading of sections of Marx's 1844 Manuscripts, in order to develop more fully his critique of modern political thought, and to sketch his early understanding of what an alternative way of thinking politics might incorporate. (shrink)

As a central part of the regulation of contemporary economies, intellectual property is central to all aspects of our lives. It matters for the works we create, the brands we identify and the medicines we consume. But if IP is power, what kind of power is it, and what does it do? Building on the work of Michel Foucault, Gordon Hull examines different ways of understanding power in copyright, trademark and patent policy: as law, as promotion of public welfare, and (...) as promotion of neoliberal privatization. He argues that intellectual property policy is moving toward neoliberalism, even as that move is broadly contested in everything from resistance movements to Supreme Court decisions. This work should be read by anyone interested in understanding why the struggle to conceptualize IP matters. (shrink)

This paper analyzes "ticking time bomb" scenarios in the discursive legitimation of torture and other coercive interrogation techniques. Judith Butler proposes a Foucauldian framework to suggest that Adminstration policies can be read as the irruption of sovereignty within governmentality. Rereading Foucault, I suggest that the policies could equally be understood as an exercise of governmentality, i.e., the subordination of juridical law to economy. I then propose as a reconciliation of these readings that time bomb scenarios serve rhetorically to make the (...) exercise of arbitrary power Butler identifies appear as an exercise of governmentality; sanitized of complications, coercive interrogation appears efficient. (shrink)

This paper uses Heidegger’s discussion of artifacts in Being and Time to motivate a phenomenological critique of Digital Rights Management regimes such as the one that allows DVDs to require one to watch commercials and copyright notices. In the first section, I briefly sketch traditional ethical approaches to intellectual property and indicate the gap that a phenomenological approach can fill. In section 2, following Heidegger’s discussion in Being and Time, I analyze DRM technologies as exemplary of the breakdown of things (...) as ready-to-hand; in particular, DRM is an example of what Heidegger calls "obstinacy." In section 3, I argue that this sort of concern generalizes beyond digital rights management due to its imbrication in ordinary, everyday experience. Finally, in section 4, I propose a framework for analyzing DRM in terms of our individuation from "the They," emphasizing how DRM undermines the functioning of "responsibility.". (shrink)

This paper is a study of the young Marx’s reception of Spinoza, centered around the 1841 notebooks Marx kept on Spinoza’s Theologico-Political Treatise. I argue that Marx’s own thought carries remarkable affinities with Spinoza’s. On the one hand, both thinkers are concerned to present questions of interpretation and reading as political questions and as essential to any understanding of human freedom. On the other hand, both thinkers are attempting to disclose theological structures masquerading as philosophy. Marx’s recuperation of Spinoza’s political (...) works can then be seen as part of his more general engagement with Hegel and Hegelianism. (shrink)

The question of nationalism as spoken about in contem porary circles is structurally the same as Marx's 'Jewish Question'. Through a reading of Marx's early writings, particularly the 'Jewish Question' essay, guided by Derrida's Specters of Marx and Benedict Anderson's Imagined Communities, it is possible to begin to rethink the nationalist question. In this light, nationalism emerges as the byproduct of the reduction of heterogeneous 'people' into a homo geneous 'state'; such 'excessive' voices occupy an ontological space outside of the (...) categories within which the state operates, and thus return, in Derrida's terms, to 'haunt' it. When the nationalist ques tion is viewed in this way, contemporary solutions that depend on reproducing this reduction are called into question. Key Words: B. Anderson • Derrida • G. Gottlieb • R. Kaplan • Marx • nationalism. (shrink)

The present paper looks at the intersection of juridical and biopower in the U.S. Supreme Court’s school desegregation cases. These cases generally deploy “equitable relief” as a relay between the juridicially-specified injury of segregation and the biopolitical mandates of integration, allowing broad-based biopolitical remedies for juridically identified problems. This strategy enabled the Courts to negotiate between these forms of power. The analysis here thus suggests the continued relevance of juridical power, and also the limits of Foucault’s own analysis, which suggested (...) that biopower tended to fully colonize juridical power by way of norms. (shrink)

Walter Benjamin’s work shows evidence of a sustained engagement with Kant and neo-Kantianism, particularly his thoughts on history and experience. I read Benjamin’s “Theses” and “Theologico-Political Fragment” against Kant’s “Idea for a Cosmopolitan History” to suggest that actual experience becomes an impossibility in the Kantian system because historical events always outrun the efforts of the Kantian apparatus to contain them. That Kant ignores these excesses indicates the theological basis of his system. Benjamin’s “messianism” can then be read as a thoroughgoing (...) materialist critique of the Kantian position and its consequences. (shrink)

This paper attempts a theoretical discussion of effects on the legal regime of copyright induced by the change from material to digital media. Specifically, a fundamental question remains unanswered: what is the relationship between an object and a copy? A conceptually clear answer to this question has been unnecessary because it has always been possible to provide an ad hoc answer through visual inspection of an object. Authorized mechanical reproductions – authorized copies – look similar to one another, and unauthorized (...) reproductions bear tangible evidence of degradation. Digital reproduction, however, makes such visual inspection impossible, as both authorized and unauthorized digital reproductions look the same. At that moment, one “would expect” that copyright protects the essence of the object, independently of how it looks. Indeed, this is precisely what copyright jurisprudence, which emphasizes originality, tries to do. However, absent the baseline of visual intelligibility, there is no criterion for knowing which object legitimately embodies its eidos and which does not. The effects of this absence stand behind many of the battles surrounding digital reproduction. In section 2, I discuss more precisely how digital reproduction undermines the original/copy distinction. In section 3, I show how the effects of this are manifest in contemporary debates. Section 4 attempts a more theoretical discussion, organized around Deleuze's discussion of Platonism (and the degree to which, for Deleuze, the Platonic original/copy distinction functions to enable the police work of good copy/bad copy). The essay concludes with some thoughts about future developments in copyright and the suggestion that the move to digital rights management technologies are appropriately seen as a response to these conceptual limitations in copyright. (shrink)

This paper discusses some of the current literature around the precautionary principle in environmental philosophy and law with reference to the possibility of transgenic food in Uganda (GMO bananas specifically). My suggestion is that the distinction between formal and substantive versions of a principle, familiar from legal theory, can be useful in imposing some conceptual clarity on aspects of debates concerning the precautionary principle. In particular, most of the negative critical response to the principle has been to formal versions of (...) it, and follows a pattern not unfamiliar from discussions of how to get from rules to outcomes. For its part, the less-discussed substantive account admits of at least two very different emphases. The first, which I call “Heideggerian,” exhibits a deep distrust of technology. The second, “autonomist,” is less concerned with the fact of technology than with the question of who controls it. As with any exercise of analytic taxonomy, this one will fail to adequately treat many of the objects it studies. However, I hope to illuminate what I take to be serious philosophical differences within the precautionary camp, and to highlight some of the questions they suggest in terms of the differences in political philosophy that might underlie and support them. (shrink)

Most current work on privacy understands it according to an economic model: individuals trade personal information for access to desired services and websites. This sounds good in theory. In practice, it has meant that online access to almost anything requires handing over vast amounts of personal information to the service provider with little control over what happens to it next. The two books considered in this essay both work against that economic model. In Privacy as Trust, Ari Ezra Waldman argues (...) for a new model of privacy that starts not with putatively autonomous individuals but with an awareness that managing information flows is part of how people create and navigate social boundaries with one another. Jennifer Rothman's Right of Publicity confronts the explosive growth of publicity rights—the rights of individuals to control and profit from commercial use of their name and public image—and, in so doing, she exposes the poverty of treating information disclosure merely as a matter of economic calculation. Both books emphasize practical and doctrinal solutions to the problems they identify. In this essay, I take a step back and draw out the extent to which they converge on a fundamentally important point: the blunt application of market logic with its tools of property and contracts fails to protect the interests that lead us to turn to privacy in the first place; the tendency to economize privacy is a significant part of why we inadequately protect it. (shrink)

In this paper I critically examine recent developments in intellectual property law. In particular, from a point of view informed primarily by Marx and Foucault, I study (a) the rhetoric surrounding the Metallica lawsuit against Napster; (b) a pair of conflicting trademark cases surrounding the ownership of a word on the Internet; and (c) the software industry's move to win approval for “shrink-wrap” or “click here” licenses. I conclude that these developments indicate a new form of disciplinary power, where people (...) are individuated ex ante as consumers. Despite the celebrations of market cyberlibertarians, this move actually masks an increase in overt state power as the state apparatus is invoked to force individuals to agree to behave as disciplined consumers and accede to the system in the first place. (shrink)