Tuesday, March 11, 2014

The Surveillance-Innovation Complex

Guest Blogger

My paper is titled “The Surveillance-Innovation Complex.” It maps a changing relationship between surveillance and government. Among scholars of surveillance, it has become conventional to note that the collection and processing of personal information is increasingly participatory, and to observe that this undermines ideas of surveillance as discipline and control. I think, though, that the shift in the nature of surveillance is even more fundamental than the contrast between (top-down) discipline and (bottom-up) participation suggests. Contemporary networked surveillance practices implicate multiple forms of participation, including organized crowd-sourcing and gamification. Legal strategies for open access and open innovation also have emerged as important drivers of the participatory turn. Many development projects that rely on personal information are framed as open access projects, and seek to exploit and profit from the intellectual cachet that rhetorics of openness can confer. The ascendancy of such strategies coincides with a concerted effort to shift the tenor of legal and policy discourses about privacy and data processing. Participants in such discourses position privacy and innovation as opposites, and align data processing with the exercise of economic and expressive liberty. The resulting template for surveillance is light, politically nimble, and relatively impervious to regulatory constraint. Commentators have long noted the existence of a surveillance-industrial complex: a symbiotic relationship between state surveillance and private-sector producers of surveillance technologies. The emerging surveillance-innovation complex represents a new phase of this symbiosis, one that casts surveillance in an unambiguously progressive light and repositions it as a modality of economic growth. At the same time, the rhetorics of openness and innovation also advance a more instrumental goal: that of keeping the regulatory state at arms length.

The paper is part of a book-in-progress, tentatively titled Between Truth and Power. The book will examine the relationship between law and information technology through the lens of institutional change. Rather than asking how law should resolve particular disputes about control of information, it will ask how disputes about control of information are affecting the law. It will trace the effects of these disputes on litigation (including both conceptions of justiciability and procedural rules), regulation (including both the substance of regulatory mandates and the structure of the regulatory state), and transnational lawmaking processes.

Our panel will discuss the relationship between privacy and innovation. I think it’s useful to remember that neither privacy nor innovation is an absolute, metaphysically coherent entity. Both are constructs, and so is the relationship between them. The relationship that we posit between privacy and innovation will, however, have significant implications for the shape of the regulatory state. In terms of both structure and substance, the regulatory state that we now have was built in response to the legal and social problems of the industrial era. A question that we now confront is how to adapt that framework to the needs of the informational era. The surveillance-innovation complex provides one answer to that question, though in my opinion it’s not the answer that we should choose.

Julie E. Cohen is a professor of law at Georgetown. She can be reached at jec at