The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy

Philosophy & Technology (2017), doi: 10.1007/s13347-017-0258-2

22 Pages Posted: 30 Sep 2015 Last revised: 4 Apr 2017

See all articles by Julie E. Cohen

Julie E. Cohen

Georgetown University Law Center

Date Written: September 28, 2015


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.

Keywords: privacy, surveillance, data, public domain, innovation, biopolitics, postcolonialism

JEL Classification: K11, K30, K40, O30, O31, O33

Suggested Citation

Cohen, Julie E., The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy (September 28, 2015). Philosophy & Technology (2017), doi: 10.1007/s13347-017-0258-2, Available at SSRN: or

Julie E. Cohen (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States
202-662-9871 (Phone)
202-662-9411 (Fax)


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