Thursday, August 05, 2004

Foucault in Cyberspace Redux

Ever since writing my masters thesis I've been fascinated by the work of Michel Foucault, especially in relation to the Panoptic theory of utilitarian scholar Jeremy Bentham. The title of my thesis was the same as the one this blog carries. It refers to both technical and legal code and the constitution that frames them. Then I did not know yet that Bentham's last, unfinished work on the theory of constitutional democracy was of the same name. I should have known better.

It was James Boyle's essay Foucault in Cyberspace, which introduced me to Bentham & Foucault's thinking on societal control through (information) networks and architecture. This is of course very much the premise on which Lessig build his book Code and Other Laws of Cyberspace. His metaphor Code is law, is the subject of a research project I've been working on. It investigates the viability of this metaphor for different fields of law - Freedom of expression, Privacy and Intellectual property law - in the light of an adapted version of Lon Fuller's legal criteria from his Morality of Law. The outcomes will be published somewhere this fall and put online before that. I wrote the essay on freedom of expression: Speech Control Through Network Architecture, A Public-Private Hybrid.
It specifically investigates how the entanglement of public and private regulation of speech on the Internet through its code may restrict the freedom of expression. That is, how the state may use private parties to enforce public policy and circumvent constitutional protections of speech in the process. An enforcement through private nodes, which might reflect a move towards utilitarianism at the cost of speech rights.

Bentham, Foucault and a public-private hybrid are also part of a new essay by Julie Cohen, posted on SSRN: Normal Discipline in the Age of Crisis. The abstract felt familiar and made me smile:
As a byproduct of the asserted imperative to control flows of unauthorized information, purveyors of intellectual goods are moving to build into delivery systems for digital information a range of capabilities that insert both surveillance and enforcement functions into private spaces and embed these functions within communications networks, protocols, and devices. This essay offers a framework for theorizing this process that is informed substantially by the work of Michel Foucault and Anthony Giddens. The extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a species of disciplinary regime similar to those that Foucault sought to understand, but it is not exactly like any of those studied by Foucault. Instead, it represents a new, hybrid type, which locates the justification for its pervasive reach in a permanent state of crisis. Although the success of this hybrid disciplinary project is not yet assured, the model of social change elaborated by Giddens suggests that its odds of success are by no means remote. Power to implement this discipline in the marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent model of crisis discipline has profound implications for both the production of behavior and the production of information spaces, and raises pressing questions about the future of the networked information society.
I highly recommend it in advance, as I expect it to be an excellent paper. But then I'm a bit biased, author and subject wise.

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