Chapter 1 - Introduction: Imagining the Networked Information Society
Julie E. Cohen
Georgetown University Law Center
August 24, 2011
Julie E. Cohen, CONFIGURING THE NETWORKED SELF: LAW, CODE, AND THE PLAY OF EVERYDAY PRACTICE, Yale University Press, January 2012
Georgetown Public Law Research Paper No. 11-121
The ongoing debate among U.S. legal scholars and policy makers about the structure of the networked information society has two odd features. First, the emerging regime of information rights and privileges is publicly justified in terms of economic and political liberty, but as a practical matter, it allows individuals less and less control over information flows to, from, and about themselves. In particular, the commercial, legal, and technical infrastructures that define the individual experience of the network are converging around relatively strong default protection for intellectual property rights in information - most notably copyright and trade secrecy - and relatively weak protection for individual privacy. Second, despite their practical convergence, legal and policy discussions about control of cultural information and control of personal information have remained largely separate.
This book argues that the two phenomena are linked, and signal deep inadequacies in the conventional ways of thinking about information rights and architectures. For the most part, U.S. legal and policy scholarship about the networked information society shares a set of first-order commitments - to individual autonomy, to an abstract and disembodied vision of the self, and to the possibility of rational value-neutrality - that derive from the tradition of liberal political theory within which legal academics are primarily trained. In each of three areas that the book will explore - copyright in cultural creations, privacy interests against surveillance, and the design of the architectures and artifacts that mediate access to networked information resources - a common pattern emerges: legal scholarship posits simplistic models of individual behavior derived from the first-order liberal commitments and then evaluates emerging legal and technical regimes that govern information flow according to the models. Theoretical frameworks organized around the core liberal individualist themes of expressive and market liberty predominate, regardless of their fit with the phenomena under investigation.
This approach has not served either theory or policy well. The models of individual behavior upon which it relies are too narrow both descriptively and normatively to yield useful insights into the relationships between copyright, creativity and culture; between surveillance, privacy, and subjectivity; and between network architecture and social ordering. Moving beyond the bounds of liberal political theory is essential if we are to understand the cultural work that regimes of information rights do and to appreciate the ways in which formally separate regimes of information rights intersect.
This book seeks to remedy legal scholarship’s theoretical deficit and, in the process, to develop a unified framework for conceptualizing the social and cultural effects of legal and technical regimes that govern information access and use. It asks the sorts of questions with which law traditionally has concerned itself - what regime of information rights is just, and why - but it foregrounds a set of considerations that legal thinking about those issues has tended to marginalize. It considers how people encounter, use, and experience information, and how those practices inform the development of culture and identity. In particular, it explores the ways in which social practices of information use are mediated by context: by cultures, bodies, places, artifacts, discourses, and social networks. From that vantage point, it considers the ways in which the processes of cultural development and self-formation adapt to laws, practices, and technologies designed to impose commodification and transparency within the information environment. It then develops a set of structural principles that should inform the legal and technical construction of the emerging networked information society.
Number of Pages in PDF File: 25
Keywords: copyright, intellectual property, trade secrecy, privacy, information privacy, Internet, cyberspace, governance, liberalism, liberal individualism
JEL Classification: K10, K20, K42, O33, Z10Accepted Paper Series
Date posted: August 25, 2011 ; Last revised: September 3, 2011
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