Prof. Cohen tells us that there are two disconnects that she starts with: 1) there are lots of invocations of “freedom” being floated around, but many of the results in the political and technical processes seem antithetical to the interests of the communities involved; and, 2) while the free culture debate is all about openness, it’s impossible (or at least difficult) to imagine how privacy claims may be contemplated in the context of all this openness.
What’s puzzling, to Cohen, about these disconnects that has led her to major substantive and methodological claims: we make these laws and policies about freedom within the frame of liberal political theory, invoking terms like autonomy and freedom and presumptions like rational choice as the dominant terms of the discourse. We ought to be focusing instead on the experienced geography of the networked society, where people are living in cultures, living in ways that are mediated by technologies. We don’t have very good tools to ask and answer those questions. We’re led to start with the presumption that individuals are autonomous and separate from culture. It’s difficult to say things about how more or less privacy will result in meaningful, significant consequences for how we experience our culture and how political discourse works from there.
On to the methodological question: lots of people are working on these questions in related fields, and we in legal scholarship often don’t pay enough attention to what they are learning (say, in cultural theory, STS, other fields described by legal scholars in pejorative terms of “post-modernist” and otherwise). We need to understand what Cohen calls “situated embodied users” and how they experience information technologies in order to inform law and policy in this field better. Cohen’s “normative prior”: We should promote law and policy that promote human flourishing (network neutrality, access to knowledge, access to culture as precursors for participation in public life). But Cohen also tells us that she parts company with those who expound this theory where they seek to embed it in liberal political theory. We should reconcile — or live with — tensions in legal and policy problems by looking to these “post-modern” fields and ask what they can tell us. We should ask what kinds of guarantees the law ought to provide.
Where does this process lead us? Think about Access to Knowledge, Cohen says: it’s nice, but it doesn’t get you as far as you need for human flourishing. It doesn’t guarantee you rights of re-use in creative materials or rights of privacy, for instance. There are further structural preconditions for human flourishing that we need to ensure. Two in particular: 1) operational transparency: it’s not enough to know what is being collected about you, you need to know how it’s going to be used; and 2) semantic discontinuity: a vital structural element of the networked information economy: e.g., copyright, you need incompleteness in the law and policy regime that affords room for play. In privacy, you need space left over for identity play, for engagement in unpredictable activity. In architecture, seamless interoperability is all to the good in some ways, but not good for privacy, for instance. Data about you would therefore move around and around and around without your knowing about it. Human beings benefit, Cohen argues, from structural discontinuity.
This is going to be a fascinating and important book. And I’m eager to think through how Cohen’s claims relate to JZ’s in Future of the Internet once I’ve read Cohen’s new work.