Balkinization |
Balkinization
Balkinization Symposiums: A Continuing List E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahman sabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Wikileaks, Neoliberalism, and American Decline
|
Monday, December 06, 2010
Wikileaks, Neoliberalism, and American Decline
Frank Pasquale The flood of revelations from Wikileaks raises some difficult questions about data security and government secrecy. Some privacy activists might enjoy seeing technology "turn the tables" on a national surveillance state, exposing its secrets as indiscriminately as programs like warrantless wiretapping gathered up citizens' data. But retaliation is inevitable: just as the shoe-bomber provoked new TSA rituals, those who want more surveillance of the internet will point to the leaked cables. As Ross Douthat argues, "WikiLeaks is at best a temporary victory for transparency, and it’s likely to spur the further insulation of the permanent state from scrutiny, accountability or even self-knowledge." We can expect more security initiatives, more indiscriminate classification of documents, and perhaps even more undocumented communications about critical issues. The discussion of Wikileaks tends to focus on either process (can government officials still communicate securely?) or substance (what do particular cables reveal about American policy?). Those two conversations ought to converge. As Felix Stalder notes, policy promoting an "Information Sharing Environment" may well have created the conditions for this breach: There is an inherent paradox. Vast streams of classified records need to flow freely in order to sustain complex, distributed and time-sensitive operations. Yet, since the information is classified, it needs to flow within strict boundaries which cannot be clearly defined on a general level (after all, you never know what needs to get connected with what in advance), and it needs to flow through many, many hands. This creates the techno-organisational preconditions for massive amounts of information to leak out. Stalder also reveals how a larger neoliberal policy framework saps the trust structures that are necessary to build solidarity and order in institutions: [T]here is a second internal contradiction. People are asked to identify personally with organisations who . . . expressly regard their employees as nothing but expendable, short-term resources. This, I think, creates the cognitive dissonance that . . . [leads] the leaker to violate procedure and actively damage the organisation of which he, or she, has been at some point a well-acculturated member (this is the difference to the spy). . . . a similar lack of identification can be seen within corporations, as evidenced in the leaks from Swiss banks. I am not saying (and I do not believe Stalder is saying) that any particular leak is justified (though the work of Global Financial Integrity suggests that illicit financial flows really deserve whistleblowing). I am suggesting certain affinities between US backing of neoliberalism generally and the peculiarly utopian aspirations of an Assange. For example, I was not surprised to see a blogger at The Economist supporting Wikileaks: [T]here is no scheme of government oversight that will not eventually come under the indirect control of the generals, spies, and foreign-service officers it is meant to oversee. Organisations such as WikiLeaks, which are philosophically opposed to state secrecy and which operate as much as is possible outside the global nation-state system, may be the best we can hope for in the way of promoting the climate of transparency and accountability necessary for authentically liberal democracy. For Economist editors, it’s frequently axiomatic that the state is incompetent, corrupt, or useless. A magazine that reflexively demonizes industrial policy doesn't have to leap too far to applaud wholesale evasion of normal legal process for information disclosure. Tom Slee reminds us that, "while WikiLeaks is making more data available to more people it has no interest in making the US government work better." It's an ideal ally for others who've given up on government, too. On the other hand, the U.S. state has been so sluggish in declassifying critical documents and opening foreign policy to outside scrutiny that vigilantes like Wikileaks are inevitably going to find a receptive audience among the disaffected. It’s becoming one more example of the “center cannot hold;” secrecy provokes wanton revelations, which in turn provoke harder secrecy protections, which provoke ever more energetic efforts to undermine them, ad nauseam. We face a future of “anarchy or perfect control,” with unstable jumps from one to the other extreme. As the stakes are raised, the US will probably need to rely more on corporate experts to supply critical cybersecurity advice. What top computer scientist will want to work for "big guv'mint" in the midst of a pay freeze? But the contractors' money will be harder to come by, as the economic base of the country has been hollowed out, and our politics can't even deliver small increases in taxes on income above $1,000,000 per year. Nor can we take the small steps toward energy independence that would help us avoid crippling trade deficits and enriching authoritarian regimes abroad. As Alfred McCoy documents, Between 1973 and 2007, oil imports have risen from 36 percent of energy consumed in the U.S. to 66 percent. . . .The World Economic Forum ranked the United States at a mediocre 52nd among 139 nations in the quality of its university math and science instruction in 2010. Nearly half of all graduate students in the sciences in the U.S. are now foreigners, most of whom will be heading home, not staying here as once would have happened. By 2008, the United States had already fallen to number three in global merchandise exports, with just 11 percent of them compared to 12 percent for China and 16 percent for the European Union. There is no reason to believe that this trend will reverse itself. . . . in October China's Defense Ministry unveiled the world's fastest supercomputer, the Tianhe-1A, so powerful, said one U.S. expert, that it "blows away the existing No. 1 machine" in America. In other words, even as the US plans for "cyberwar" and a high tech "revolution in military affairs," we are slowly losing the capacity to train the scientists necessary to implement that strategy---or to accumulate the funds necessary to recruit them from abroad. Is it any wonder, then, that we can't even seem to keep diplomatic cables secure? We have politically committed ourselves to a permanent campaign against terrorism by "hyperempowered individuals," spending hundreds of billions of dollars on this national security strategy. We try to project power 8,000 miles away, while we can't even stop rampant copper thefts at home. The cables reveal a "superpower" repeatedly reduced to begging or cajoling world leaders to promote peace or order. Why should a country that can't even raise taxes on its richest citizens think it can keep its communications secure? Where's the commitment of resources? Social Research's upcoming issue "Limiting Knowledge in a Democracy" will examine many facets of governmental secrecy, including Peter Galison's essay on the "three Acts [that] ground the modern world of national security secrecy." Some articles point to a larger trend of displacing surveillance from the state to corporate entities that can better profit from monitoring individuals. In a post-Wikileaks world, we're likely to see a similar displacement of information security responsibilities to corporate entities, and an ongoing redefinition of the US national interest to mirror the interests of those capable of providing that security. Diplomacy among states will decline in importance; corporate chieftains' communications will be the ones that matter, and they will be secure. As the US promotes limitless global capital flows and "internet freedom," it might consider what Jeanette Hoffman calls the "Libertarian Origins of Cybercrime:" Social theorists discovered the issue of unintended consequences against the background of a modern understanding of society which emphasizes virtues such as individual and collective responsibility and the capacity of self-determination. Following Hirschman (1982), unintended consequences thus form an ironic twin to the expectation that social development is amenable to planning and control. . . . [One can interpret] cybercrime as an unintended consequence of the utopian dreams that flourished during the early days of the Internet. In itself a highly innovative activity, cybercrime can be seen as an ironic counterpart to the expectations of an egalitarian cyberspace whose technical and social norms condemned discrimination against any type of applications and uses. Neoliberal policy that always prioritizes freedom over security, liberty over equality, invites the kind of social disintegration of which Wikileaks is a symptom. The Wikileaks cables reveal the ugly bargains needed to sustain a global dream of "spontaneous order" generated by markets. Now a state that has promoted out-of-control information flows finds itself undermined by their reckless uses, and ever less capable of combatting the problem because of the unconstrained capital flows it has also championed. Both the process and the substance of the Wikileaks affair can be embedded in a larger tragic narrative of the unintended consequences of the neoliberal project for its chief exponent. X-Posted: Concurring Opinions. Posted 9:34 PM by Frank Pasquale [link]
|
Books by Balkinization Bloggers ![]() Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) ![]() David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) ![]() Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) ![]() Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues ![]() Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |