Biopolitical Opportunities: Between Datafication & Governance.

Abstract

Julie Cohen’s tour de force Between Truth and Power asks us to consider the new ways powerful digital actors extract valuable resources for gain and dominance. In this essay, I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and technology but also a call to action. This essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes, in service of public goals of fairness, equality, and distributive justice. In particular, the essay describes several current contexts that demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The three examples I focus on are: first, current developments in labor market information flows that are attempting to address salary inequities, labor market concentration, and bias; second, the technique of scraping data off platforms in service of regulatory compliance, competition, and independent research; third, the issue of monitoring and tracking viral spread during a global pandemic. I argue that if we are to take Cohen’s framework seriously, then policymakers must identify opportunities within disruptive technological changes and to mirror, rather than attempt to block, these innovations. Lawmakers and scholars must be creative and forward-thinking in finding windows and shaping the digital law in ways that promote public ends.

Keywords: digital, digitization, compliance, covid, competition, scraping, equality, privatization, privacy, governance,enforcement, accountability, algorithms, regulation, technology, law and technology, platforms, market concentration, antitrust, wage gaps, gender, tracking, monitoring, innovation, online

JEL Classification: K10