Data associations in global law and policy

This article is a part of special theme on Data Associations. To see a full list of all articles in this special theme, please click here: http://journals.sagepub.com/page/bds/collections/data-associations.

Social phenomena—or the condition of society—may be “seized indirectly when there is a slight change in one older association mutating into a slightly newer or different one” (Latour, 2005: 36). The aim of this special issue is to trace mutations underway in those associations rendered or experienced in data and to probe some patterns that these changing ties draw. In particular, contributors to this issue reflect upon associations traceable in data that are of a juridical nature (or could be so understood), or that have salience for legal institutions and norms. This is something other than inviting consideration of “problems” that technology makes for law. It is something other, too, than thinking about whether law does or does not determine or reflect socio-technical practice, or vice versa, and how such law-technology correspondence might “properly” be maintained. Instead, contributors engage here in a collective experiment of envisioning data as vectors of lawful relations on the global plane, and at other scales. This is unfinished business for Big Data & Society. In this journal’s opening issue, Rob Kitchin argued that “the development of digital humanities and computational social sciences… propose radically different ways to make sense of culture, history, economy and society” (Kitchin, 2014: 1). But what “sense” could “Big Data empiricism,” as Kitchin described it, make in, of and for global law and policy? This is among the questions that the contributors to this special issue take up. Neither digital technology nor law is pivotal to this inquiry, so much as their irrepressible leaking and morphing into would-be or could-be versions of the other.

As paradigmatic a shift as the turn to epistemologies of Big Data might seem, making connections between these emergent epistemologies and “older association[s],” in Latour’s words, is also an important task of this collection. Sheila Jasanoff traces, for instance, the history of the production of “a panoptic viewpoint from which the entire diversity of human experience can be seen, catalogued, aggregated, and mined” from the mid-20th-century, especially in the emergence of the “global environment” as an “actionable object for law and policy.” Naveen Thayyil likewise draws an analogy between change in weather and climatological studies from the 1960s onwards (from instrument reading techniques to computer modeling) and parallel shifts in approaches to risk regulation (from conventional risk assessment to precautionary approaches, the latter increasingly advanced through “Big Data” automation). Ben Hurlbut similarly connects “scientifically authorized imaginations of future risk” on the global plane to earlier incarnations of the “republic of science” assembled around pandemic risk since the 19th-century. Other contributions to this volume re-frame contemporary phenomena by reference to associations of more recent provenance: Sarah Logan analyses “post 9-11 mass surveillance” and the “anxious information state” it enshrines. Likewise, Gavin Smith, Kath Albury, Jean Burgess, Ben Light, Kane Race, Rowan Wilken, and Daniel Joyce focus on “data cultures” ascendant during the past decade and the legal, social, and political conflicts and connections that surface amid them.

The protagonists and environs of the stories told in these pages vary greatly. Not all are of a kind that one might expect to find featured in a journal about “Big Data and Society.” Scientists keep company with museum designers; government officials rub shoulders with journalists and activists; terrorists and those who hunt them mingle with weather forecasters; software and search engine developers are interspersed with “quantified selves”; and dating app users fraternize with bird watchers contributing to citizen science initiatives. What Daniel Joyce calls “the challenge and opportunity of Big Data” turns out to have stakes for many who may not see themselves as so invested or enrolled. Nonhuman protagonists are similarly diverse and varied in sophistication and scale. They include files (both paper and digitized), reports, remote sensors, satellites and diverse forms of scientific equipment, viruses and the organisms that transmit them, government computer systems and the smart phones ubiquitous across many parts of the world. Settings range from Hawaii’s Mauna Loa observatory to the ICRC’s Red Cross and Red Crescent Museum in Geneva, from Indonesian bird markets to gatherings of scientific experts, from courtrooms and security agencies to the hybrid space of screen-mediated sexual encounters. To draw all these persons, places, and things into a collective account of contemporary juridical mediation in data is, from one angle, preposterous. And yet the very preposterousness of this agglomeration conveys something of the voracious indifference, roving opportunism, and endless repurposing characteristic of new analytical methods and software designs that aim to extract actionable insight from massive datasets using machine learning and other automated techniques.

The dilemmas with which these protagonists grapple, or the conditions under which they come to be datafied, are similarly diverse. Nonetheless, common quandaries recur in the stories that our contributors relate. One is the difficulty of trying to generate or project a sense of a whole out of unresolved difference, or making the global—as such—available to experience and asserting sovereignty over its scalar elements. As this volume makes plain, this quintessentially modern challenge persists amid tendencies that seem aimed in another direction: towards data-driven personalization, nano-surveillance and therapeutic attention to the singular.

A second theme that emerges from this collection surrounds the actual and potential substance of legal order. Long-held ideas endure about sociality and culture, on one hand, and market-based exchange, on the other, as that which comprises the “stuff” of which order is made, and that which legal norms and institutions must foster and defend. Yet this collection entertains a further, speculative idea: that there may be forms of relation of growing significance, manifest or realized in data, not reducible to the expression or defense of exchange or socio-emotional connection, but which nonetheless have legal ramifications. That is, digital data may be “lay[ing] the groundwork for new claims and appeals to conscience” and responsibility (Jasanoff in this volume) and constituting “moral and technical borderland[s] where powerful agencies… coalesce” (Smith in this volume). Consider, for example, relations of correlation between data patterns associated with a terror suspect, and data patterns identified with other persons, in the surveillance work of which Sarah Logan writes in this volume. Correlations in data create a basis for supposition and the visualization of juridical futures in such a setting, without necessarily corresponding to any apparent economic or social relation. Consider, also, the celebrity–follower relation maintained online, of which Daniel Joyce writes in this volume when discussing recent judicial efforts to protect reputation online. This tie is not quite explicable in terms of economic relations, nor in terms of conventional sociality, although both may be imbricated within it.

Thus, when the contributors to this volume write of data associations in global law and policy, they write not just of pre-existing relations finding expression (accurately or otherwise) in data, or being reoriented or “nudged” by data-driven operations and designs (Yeung, 2016). They write also of data as a medium for publicly imagining and re-imagining those relations, much as Sheila Jasanoff has written elsewhere about photography—specifically, the photographing of Earth from space—as a medium for “fundamentally alter[ing] human consciousness” through vernacular action (Jasanoff, 2012: 79).

In this volume, Sheila Jasanoff writes of a different type of vernacular action, namely that associated with the creation of “conjunctions of numbers and norms” in data and the lines of sight and sightlessness that these create. In particular, Jasanoff is concerned with how global environmental phenomena become visible and actionable through the production and circulation of particular types of “data assemblage” and the “observational standpoints” they engender. Distinct legal and political cultures predispose publics towards adopting quite divergent ways of perceiving and representing environmental conditions in data, Jasanoff argues. Only by taking account of this divergence, Jasanoff contends, might we recognize “official forgetfulness and underestimation” in the “data practices of ruling institutions” and discern the unanswered pleas for justice embedded in those.

Data practices of ruling institutions—and their claim to be devoid of partial political viewpoint—are also called into question in Ben Hurlbut’s contribution to this volume. Specifically, Hurlbut contends that the “data-driven regime of global viral surveillance” constituted over recent decades to address pandemic risk, and the idiom of “stateless science” it mobilizes, advance authoritative yet controversial accounts of the “right ordering of ‘post-national’ global governance.” Forms of association that do not fit comfortably into this version of global space are, Hurlbut highlights, “marked as contravening a fundamental norm” and disciplined or discredited accordingly. This imperative quality arises, in part, from the claim of science to be able to foretell and respond to future risk, a claim that affords science a distinct, defensible jurisdiction in the present. The data associations evoked by science in the field of global health, for instance, are intensely political—and recognized as such—and yet are immunized from contestation in those terms by their apparent capacity to reach beyond the here and now. Science thus occupies “a constitutional position” in Hurlbut’s account of global health law and policy, even as it tends to “escape the notice” and scrutiny of legal and political analysts.

The embedded normativity of datasets is of concern, also, for Naveen Thayyil’s article in this special issue, focusing on data associations in environmental governance. Thayyil’s aim is, however, not just to bring this normativity to the surface, but rather to explore its possible articulation—and disarticulation—with prevailing paradigms of risk. Precautionary approaches to risk, in particular, might be served quite well, Thayyil suggests, by the turn to automated data gathering, monitoring and visualization in biodiversity monitoring. To the extent that automation affords new platforms for public participation, and new prospects for long-term, large-scale monitoring, it could be seen to align with the aspirations of a precautionary approach. At the same time, however, Thayyil draws attention to the difficulties likely to emerge in giving effect to this apparent alignment, as “reification… move[s] from an “expert-dominated site…to automated programs.” Whether automation in ecological monitoring is likely to foster trust among different publics remains very much in question at the end of Thayyil’s article. Nonetheless, his contribution greatly aids understanding of how and where “Big Data” techniques might fit into prevailing paradigms of risk, or not.

Difficulties of Big Data associations’ fit into existing institutions are further addressed in Sarah Logan’s contribution to this volume, investigating the anxiety caused by the practices of mass surveillance in the age of Big Data. She argues that our popular metaphors of the haystack and the panopticon are inadequate to examine the uneasy role played by the state in the management of information flows and data capture. Logan carefully presents the “long history of the panopticon metaphor” and the more recent needle in the haystack metaphor which has been used to justify the mass surveillance state. Present understandings in terms of these metaphors in fact overplay the power of the surveillance state and underplay its anxieties and the more complex realities of information overload. The article tackles the uncomfortable truth of state failure to prevent terrorism with surveillance. Logan also unsettles the “knowledge as power” underpinnings of these analytical tools, and points rather to the “fragility of state power in an age of Big Data,” drawing on the work of James Scott regarding legibility and state information management. Thus, while the scale of data association and management in post 9-11 mass surveillance is often presented as a strength, Logan reveals the conceptual problems and anxieties generated by these practices along with the weakness of algorithmic attempts to predict threats.

A useful way to understand ordinary interactions with and perceptions of data, as well as the devices and platforms through which we interact with data, is Gavin Smith’s notion of “data doxa.” This foregrounds a utilitarian perspective of how we generate and use data, while obscuring the role they play in the broader political economy, in particular the role of surveillance in focusing power within corporations and the state. We create data to serve an immediate purpose, while ignoring the ways in which others use our data to shape our behaviors and experiences. We desire the immediate benefits of data creation, sharing and visibility for personal gain, to address perceived security threats, and to live ordinary, convenient lives. We thus are conditioned into a habitus, in Bourdieu’s sense, that is based around data-based visibility, only realizing the consequences at the moment they are direct and personal. Smith ends with the hopeful, if somewhat optimistic, possibility of unsettling our relationship with data through research and research-based education.

These general observations can be a guide through the journey led by Kath Albury, Jean Burgess, Ben Light, Kane Race, and Rowan Wilken into the increasingly “datafied” world of sexuality. Here, data cultures emerge across the community of users, corporations, developers, governments, advertisers, and researchers as data from users (whether entered by the user or through tracking locations and behaviors) is used in ad-targeting, product development, social science, profile optimization, gamification, public health initiatives, and law enforcement. The authors argue that these data cultures need to be properly understood before it is possible to engage appropriately with the array of legal and personal challenges raised around privacy, discrimination, harassment, violence, and humiliation. It is not simply a matter of understanding the data associations or technologies of collection and analysis themselves, but rather the broader cultural web and, in particular, the complex interactions with data and platforms among users as players in the technology-mediated game of finding intimacy and pleasure.

Intimacy carries a different valence in Daniel Joyce’s reflection on possible futures for the lawful protection of reputation. Joyce considers the implications of data associations for the protection of reputation online. He focuses, in particular, on the ways in which Australian courts have struggled with the application of defamation law principles and concepts to the algorithmic context of search engine publication of defamatory material. Search engine liability is an increasing concern for a number of jurisdictions and Joyce begins by contextualizing these questions in terms of debates over online publication by algorithm. While addressing a discrete and contemporary policy question and critically analyzing the response of the Australian courts, the article goes further in reflecting on the wider significance of data associations for defamation law. Publication has been the main focus of scholars in addressing online reputation, but the elements of defamatory meaning and identification are also deserving of deeper reflection and re-assessment in light of the challenge of Big Data. There are wider questions also concerning the interaction of defamation law with data protection frameworks, speech and privacy. Rather than guaranteeing its eclipse in light of technological change, Joyce proposes that the governance of data associations points to the continued relevance and potential renewal of defamation law.

Continuance and potential renewal are apt notes on which to end this short introduction to what we hope readers will find a generative collection of writings on data associations in global law and policy. We look forward to tracing the afterlife of these works and reading how the puzzles and paradoxes they elucidate get tackled further elsewhere.