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 law.georgetown.edu