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. (shrink)

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. (shrink)

This Article examines the regulatory state through the lens of evolving political economy, arguing that a significant reconstruction is now underway. The ongoing shift from an industrial mode of development to an informational one has created existential challenges for regulatory models and constructs developed in the context of the industrial economy. Contemporary contests over the substance of regulatory mandates and the shape of regulatory institutions are most usefully understood as moves within a larger struggle to chart a new direction for (...) the regulatory state in the era of informational capitalism. A regulatory state optimized for the information economy must develop rubrics for responding to three problems that have confounded existing regulatory regimes: platform power — the power to link facially separate markets and/or to constrain participation in markets by using technical protocols; infoglut — unmanageably voluminous, mediated information flows that create information overload; and systemic threat — nascent, probabilistically-defined harm to be realized at some point in the future. Additionally, it must develop institutions capable of exercising effective oversight of informationera activities. The information-era regulatory models that have begun to emerge are procedurally informal, mediated by networks of professional and technical expertise that define relevant standards, and financialized. Such models, however, also have tended to be both opaque to external observation and highly prone to capture. New institutional forms that might ensure their legal and political accountability have been slow to develop. (shrink)

In civil libertarian discourse, the inverse relationship between government secrecy and privacy is well recognized and widely acknowledged - so widely, in fact, that it can come to seem as though we might regain sufficient privacy simply by cabining official secrecy. But regimes of secrecy that insulate private-sector data processing practices also contribute materially to the decline of privacy, and indeed play a vital role in facilitating government efforts to make citizens' lives transparent. In addition, there is an inverse relationship (...) between openness and privacy that we are inclined to resist discussing. When, for example, a government agency posts on its website documents containing private information about individual citizens, or when a social networking service establishes default rules for transmitting information from member pages to commercial partners, openness contributes materially to the exposure that people experience. Our public discourse about information policy reinforces the devaluation of privacy in two opposite but mutually-reinforcing ways, by valorizing political economies organized around secrecy and by elevating openness as an ultimate good. The shelter that privacy affords for self-development is essential to a healthy democracy. It is therefore important to interrogate both our regimes of secrecy and our discourses about openness. (shrink)