Introduction

This introductory chapter provides an overview of the interlinked themes of political economy, governmentality, and institutional configuration that the book will explore. It begins with a brief exploration of the roles that networked information technologies and law play in relation to economic and political power: through their capacities to authorize, channel, and modulate information flows and behavior patterns, code and law mediate between truth and power. It then briefly sketches the ongoing and interrelated transformations in political economy and political ideology (or governmentality) that are now underway. Finally, it returns to law, situating legal institutions within processes of economic and ideological transformation.

The End(s) of Judicial Process

This chapter explores changes in institutions and processes for dispute resolution. The gradual but accelerating movement to informational capitalism has confronted the judicial system with two large and interrelated problems: a proliferation of asserted harms that are intangible, collective, and highly informationalized; and an unmanageably large and ever-increasing number of claimants and interests. Emergent responses to those problems reflect the ascendancy of managerial ideologies about the nature of effective governance and the universe of feasible institutional strategies and practices. The managerial turn reinforces the traditional emphasis on concrete, individualized claims and frames dispute resolution problems as problems of production at scale to be addressed using techniques for input sorting and supply chain management. The judicial system—conceived throughout the industrial era as a monolithic dispenser of one-size-fits-all justice—is being reconceived and re-engineered along streamlined and diversified lines that are optimized to the interests of powerful information-economy actors.

The Regulatory State in the Information Age

This chapter explores changes in institutions and processes for economic regulation. The emergence of the platform as informational capitalism’s core organizational logic and of datafication as its principal logic of commodification have disrupted traditional, industrial-era approaches to defining both markets and harms, making it more difficult to articulate compelling accounts of what precisely should trigger regulatory oversight and enforcement. At the same time, settled ways of thinking about the appropriate modalities of administrative lawmaking have come under challenge. Emergent institutional models for oversight of information-economy activities are procedurally informal and emphasize ongoing compliance with performance-based standards intended to guide complex, interdependent sets of practices. Those models also reflect the influence of the managerial turn. They rely heavily on privatized self-regulation, compliance certification by professional auditors, and financialized review to minimize regulatory burdens and costs, and they have tended to be both opaque to external observation and highly prone to capture.

The Information Laboratory

The emergence of the platform-based, massively intermediated information environment upends settled ways of understanding the nature and social function of media technologies. For several hundred years, political philosophers and legal theorists have argued that access to information and to the means of communication promotes reason, self-determination, and democratic self-government. Contemporary, platform-based information infrastructures and ecosystems, however, are being optimized to appeal to motivation and emotion on a subconscious level in ways that undercut the exercise of informed reason. This chapter explores the patterns of information flow in the platform-based, massively intermediated information environment and maps the ongoing construction of legal immunities designed to shelter them. Powerful information-economy actors have mobilized new logics of innovative and expressive immunity to stave off protective regulation and deflect accountability for both old and new kinds of harm.

Everything Old Is New Again—Or Is It?

Extending the analytical frame and the metaphor of the double movement, this chapter frames the emergence of informational capitalism in terms of three large-scale shifts that together constitute the movement toward informational capitalism: the propertization (or enclosure) of intangible resources, the dematerialization and datafication of the basic factors of industrial production, and the embedding (and rematerialization) of patterns of barter and exchange within information platforms. Against that background, it explores the shifting, emergent relationships between control of intangible intellectual resources and political economy. In particular, it highlights ways in which data and algorithms have become the subjects of active appropriation strategies—strategies that represent both economic and legal entrepreneurship.

Conclusion

This book has explored the gradual and contested emergence of legal institutions adapted to the informational economy. It has considered changes in patterns of entitlement and disentitlement and in the structure and operation of regulatory and governance institutions. The conclusion offers a brief reflection on the ways that transformations in political economy shape the horizons of possibility for Polanyian protective countermovements and on the durability of such countermovements. It observes that countermovements are temporary, inevitably inviting new strategies for evasion, capture, co-optation, and arbitrage, but that they also create the possibility for real, incremental improvement—and occasionally even for transformative improvement.

The Biopolitical Public Domain

This chapter explores the emergence of a new factor of production in the informational economy—data flows relating to people and their activities—and identifies the legal construct that facilitates contemporary practices of personal data extraction and processing. The idea of a public domain of personal data has two interrelated effects. First, it constitutes personal data as available and potentially valuable, thereby supporting the reorganization of sociotechnical activity in ways directed toward extraction and appropriation. Second, it constitutes the personal data harvested within networked information environments as raw, thereby underwriting narratives of legal privilege that attach to the processing of personal data processing on an industrial scale and to the outputs of such operations.

Open Networks and Closed Circuits

Both nation-states and intellectual property owners have sought to impose interdiction obligations on network intermediaries. This chapter considers the extent to which such efforts have begun to coalesce into more definite patterns. Narratives about the dangers of uncontrolled information flow, including threats to public safety, threats to information property, and threats to state authority, have morphed into expansionist accounts of existential threat that are thought to justify correspondingly broad countermeasures. Meanwhile, powerful new platform intermediaries have resisted the imposition of formal interdiction mandates, seeking arrangements that better serve their own interests. In some contexts, struggles among competing authorities have produced institutional settlements that involve strong legal mandates; in others, platform-based, algorithmically mediated “self-regulation” has emerged as the path of least resistance. Meanwhile, logics of fiat interdiction have become progressively normalized within legal and policy discourses.

Networks, Standards, and Transnational Governance Institutions

This chapter juxtaposes the various governance processes that have emerged in the domains of world trade, transnational business regulation, and internet governance and treats them explicitly as iterations of an emergent network-and-standard-based legal-institutional form. Network-and-standard-based governance institutions are situated within larger assemblages for transnational legal ordering. Their operations reflect complex and mutually interpenetrating sets of relationships and practices that involve a heterogeneous array of public, private, and public-private actors and associations. The shift to a networked and standard-based governance structure reshapes modes of lawmaking and enforcement, patterns of contestation over lawmaking authority, and structures for participation and accountability in ways that pose important challenges both to the realizability of traditional rule-of-law values and to traditional conceptions of the institutional forms that those values require.

The Future(s) of Fundamental Rights

This chapter considers the effects of digital disruption on the recognition and enforcement of fundamental human rights. It maps three overlapping and mutually reinforcing sets of trends. First, traditional mechanisms for defining and enforcing human rights have begun to unravel, and that process has created points of entry for new discourses and practices organized around managerial and technical expertise and optimistic notions of corporate social responsibility. Second, strategies for bottom-up cultural and political production have enabled powerful new forms of resistance but have been far less successful at underwriting new institutional forms dedicated to ensuring more widespread protections for all people. In particular, platform-based, massively intermediated media infrastructures both facilitate and co-opt bottom-up cultural and political production and amplify both benevolence and malevolence. Third, other emergent discourses about the nature and importance of fundamental rights reinforce the normative authority of powerful, nonhuman actors.