#012- Some Critiques of Nick Couldry and Ulises Mejias Conception of “Data Colonialism”

In the following I note some directions from which couldry and mejias’s data colonialism conception may be challenged.


1. That by making a separation between colonisation of territory/bodies (concrete material spaces), and the “colonisation of mind” of the data economy of our times, Couldry and Mejias’s conception of data colonisation not just erases the epistemological colonisation that occured in the centuries past (cultural destruction, erasure of indigenous knowledge systems etc.), but also invisibilises the material (not just ‘colonisation of mind) violence that is happening today eg. Through labour practices in globally distributed data supply chains.
Media professor Monika Halkourt makes an argument on these lines citing other literature here:https://data-activism.net/2019/10/bigdatasur-on-the-coloniality-of-data-relations-revisiting-data-colonialism-as-research-paradigm-12/


2. That as part of a broader trend in global norths literature on data, Couldry and Mejias’s “data colonialism” adopts a approach that ignores the differences in power re material relations in global north and south thus universaling the experience of the ‘global north’ to the ‘global south’ which in legal discourse has been challenged by the vast body of scholarship on legal pluralisms. Couldry and Mejias’s data colonialism is thus problematic for data justice and work on political economy of data from marginalised positions for it would lead into the same universalisation one looks to critique.
An important article to read about such universalising discourses on data is work on data in global south is:. Segura and Waisboard, Between Data Capitalism and Data Citizenship https://journals.sagepub.com/doi/abs/10.1177/1527476419834519


3. Lastly, indigenous scholars have pointed out that decolonisation is not a metaphor but refers to transformation in very concrete material setups where indigenous people are preyed upon and harmed. Couldry and Mejias’ data colonialism on the other hand ends up making both data and colonialism a metaphor for tech oligopolies of the 21st century without accounting for the ways data colonialism has actually always been in place if not through market then through state mechanisms or even in development aid projects where data from the global south has always been alienated from citizens in the south and used to control their lives. So what Couldry and Mejias identify as data colonialism is infact nothing new or peculiar to the circumstances of the global south, but his insistence on ‘data colonialism’ as a feature of 21st century tech oligopolies also erases this north-dominates-south history of data colonialism to present a sanitised and universaling version of “data colonialism” that’s about ‘us’ (human/good citizens) v. ‘them’ (technology/tech political economy). Another political move or what Tuck and Yang call settler moves to innocence in this article https://jps.library.utoronto.ca/index.php/des/article/view/18630
The international political economy of data has existed long before the rise of big data or machine learning, eg. in trade for natural and knowledge resources. To not account for that exploitative political economy where the global north preys on the south is not an innocent but a political move to marginalise and erase histories the white academe on data deems problematic.


If you know of any more literature critiquing Couldry and Mejias’s adoption (appropriation?) of the term data colonialism, please do add below in comments. Thank you!

 

#011- Fragments of failed application to LSA Junior Scholars Workshop 2019

(emboldening thoughts i found interesting and might come back to later)

I am super interested in addressing the question of the gap between law on the books and law as experienced, and in this context in the past year, I have found myself increasingly drawn to reading (oft positivist?) canonical legal philosophy (eg. Hans Kelsen, Oliver Wendell Holmes, HLA Hart) through the diffractive lens of law and society work (eg. Susan Silbey, David Nelken) and asking what it means to do critical/accountable work as a ‘legal’ researcher? Asking this question of course opens up the question of how ‘we’ understand the ‘legal’ and what it means to do ‘socio-legal’ or other inter-/multi-/trans-disciplinary forms of research? And it is to position one of these majorly influential ‘we’s – the dominant ‘insider’ position of the ‘legal expert’ that I am interested in looking at the canonical construction of law.

 

In doing this research, I have found that from the canonical positioning, one common theme which arises in legal research – as a distinct disciplinary/practiced endeavour of ‘the law’ – is the urgency of decision-making. Unlike many other disciplines in the humanities and post-humanities, law centres on a certain ‘doing,’ a certain performativity in the sense of rendering text into material implications for the lived world. In contrast to many other socio-scientific endeavours then, which in their disciplinary methodology seek to address descriptive narrations of the world (“what is happening?” “what is the world?” etc.), the question of “how to act?” “what to do now?” is somehow more urgent to law, and consequently, the legal methodology of doctrinal analysis is focused towards this urgency. In this sense, as a discipline/elevated practice of ‘action’, law in its own self-reflection, seeks to use knowledge from other disciplines of the sciences and social sciences to enhance its knowledge about society, viz. to have better information, so that better decisions can be made. This view of the law has of course been widely critiqued in both socio-legal research and other critical sites like Critical Legal Studies (eg. Drucilla Cornell, Duncan Kennedy, Roberto Unger) and Science and Technology Studies (eg. Sheila Jasanoff, Susan Leigh Star, Bruno Latour) who rightly point out that in this process of finding more information about the society to make better decisions, law ends up creating this information. But while this critical insight is super useful and reveals a lot of the politics of disciplinary and interdisciplinary knowledge production, it still doesn’t quite answer the question which lawyers keep asking over and over: Given this new critical insight, “How to act?”, “How to decide?”, and eventually a lack of answer to this question and the pending urgency of decision-making gets them frustrated and makes them give up on interdisciplinary approaches, and go back to their old discipline-bound legal doctrinal methods, thus ‘living in the law.’ In this manner, even interdisciplinary socio-legal work fails to have a significant ‘real world’ impact and the difference between law on the books and law as experienced keep persisting, with of course its own oppression. How to address this gap while eschewing positivism and using critical insights about discipline-bound knowledge making and consequently inter-/trans-/multi-disciplinary work is a question I am deeply interested in, which is a theme I also look forward to engaging on in the LSA Junior Scholars Workshop. This is also a question I seek to address – though somewhat indirectly (as in, by doing) my Ph.D. work. Here I take cue from Michel Foucault’s comment, “Knowledge is not meant for understanding, it is meant for cutting.

 

The more apparent theme of my Ph.D. research is to problematise the notion of ensuring algorithmic accountability through legal-rights regulation (context:GDPR) of machine learning algorithms. Such problematisation is sought by mapping and comparing how the notion of accountability in practices of predictive machine learning (ML) algorithms and in practices of legal rights is constructed. Such comparative work brings forth the question of the kind of ‘accountability’ knowledge(s) constructed in the interaction of legal rights and predictive ML algorithms in the phenomenon of legal rights –based regulation of ML. How to study this phenomenon critically through a deconstruction of disciplinary knowledges while also (not?) responding to the urgency of decision-making in law, is something I am looking to unravel through this work.

#010- An Outline of Themes in Judith Butler’s Text What Is Critique?

An Outline of Themes in Judith Butler’s Text What Is Critique?: An Essay on Foucault’s Virtue


Theme 1: Generalisations, Universalism, Particularism, Critique, Constrained Generality

(para 1)

Philosophy and critique, philosophy of critique

Essence of critique

 

Theme 2: Critique as the Suspension of Judgment

  • A more specific kind of response that did not generalise too quickly. What always needs to be (Raymond Williams) (para 3), critical distance from established authority (para 44, 45)
  • Affinity with Williams and Adorno (para 4), Contrast with Habermas (para 6).

Theme 2(a) Critique as Normative Claim with Radically Different Assessment of Normativity (para 7): last line clarification.

 

 

Theme 3: Critique as Heterogenous, depends on its objects but objects don’t define it

(para 8,9) Tie it in with Theme 1?

 

Theme 4: Critique to bring into relief the very framework of evaluation itself (para 9-11)

why is this being brought up when critique cannot be defined? Maybe it illustrates a function of critique.

(para 9)

The need for reassurance through an established standards>>> where are we going? (para 9)

Critique as the limits of knowing (para 10)

 

Theme 5:  Exposure of the limit of knowing as Virtue (para 11-13

  • Interesting that Critique is a virtue not a norm nor an ideology. I think he means virtue more in the aesthetic way rather than normative way. (not utilitarian, not deontological, aesthetic like the arts of existence) “ At this juncture he makes clear that he seeks to move beyond a notion of ethical philosophy that issues a set of prescriptions. Just as critique intersects with philosophy without quite coinciding with it, so Foucault in that introduction seeks to make of his own thought an example of a non-prescriptive form of moral enquiry.” (para 13)

 

  • Non-prescriptive ethical philosophy<<(a)Quite a contrast with Kelsen as law as a prescriptive science. (b) Contrast with Derrida- the inherent characterisation of Justice as ever tainted by Force. Justice as enforced.

 

  • Introducing the notion of “arts of existence,” Foucault also reintroduces and reemphasises “intentional and voluntary actions,” speficially “those actions by which men not only set themselves rules of conduct, but also seek to transform themselves in their singular being, and to make their life into an oeuvre.” (para 15)

 

GENERAL DISCUSSION OF PARA 15: self and norm., more on this in para 18, 19

Discussion on last parts of para 18

 

Theme 6: Critique Conceptualised as Theory as Practice

Critique in emlightenment

“To be critical of an authority that poses as absolute requires a critical practice that has self-transformation at its core.” (para 20)

But three-four steps resistance to authority (para 21): a. understading reasons we might have for consenting to a demand

  1. forming those reasons for ourselves (reason not in the Enlightenment rationality sense as far as I understood)
  2. transforming ourselves in the course of producing those reasons (viz. in the practice)
  3. putting at risk the field of reason itself. (shouldn’t it be field of knowledge? But then she is talking in the enlightenment context)

 

Theme 7: Aesthetics and Ethics (para 23, 24, 25, 26, 27, 28, 29)

How not to be governed like that>>church, exposing illegitimacy, but not by discovering other sources of authority (para 25)

BUT, discussion QUESTION: then what universal or indefeasible rights? (discover v. putting forth) para 25

Possible answer: enlightenment discovers these universal rights, but in Foucault is it only a resistance a call to non-governance in the name of indefeasible rights which hide sthng mystical? Ala derrida n mystical foundations of authority?

DISCUSSION SENTENCE (para 25) “But perhaps what he is offering us by way of “critique” is an act, even a practice of freedom, which cannot reduce to voluntarism in any easy way. For the practice by which the limits to absolute authority are set is one that is fundamentally dependent on the horizon of knowledge effects within which it operates. The critical practice does not well up from the innate freedom of the soul, but is formed instead in the crucible of a particular exchange between a set of rules or precepts  (which are already there) and a stylization of acts (which extends and reformulates that prior set of rules and precepts). This stylization of the self in relation to the rules comes to count as a “practice.” (para 25)

Similarities and Differences with Kant: Act of consent a reflexive moment BUT reflexivity is not internal to the subject (para 26)

Critical attitude, field of knowledge, limits of validity, certainty (para 26)

Critique as putting the subject at risk (para 28)

What is aesthetic/artsy about critique?.: “If it is an “art” in his (Foucault’s) sense, then critique will not be a single act, nor will it belong exclusively to a subjective domain, for it will be the stylized relation to the demand upon it. And the style will be critical to the extent that, as style, it is not fully determined in advance, it incorporates a contingency over time that marks the limits to the ordering capacity of the field in question. So the stylisation of this “will” will produce a subject who is not readily knowable under the established rubric of truth.” (para 28)  <<<<contrast this lack of certainty in critique (para 28) to the certainful determination of “illegitimate” authority etc (para 25)

Aestheticizing ethics (paras 46, 47, 48) << relate to Theme 2: critical distance from established authority

 

Theme 8: Ontology and Epistemology: Converge of the two in critical practices

Liberty at the limits of knowing. Affinity with Kant: Do u know upto what point can u know? Who am I in this particular order, what can I become? (para 30)

Affinity with Frankfurt School: critique of rationalisation as governmentalisation (para 31-32, 36)

Theme ((a): Knowledge n Power: Characteristics of Knowledge (para 33, 34)

Task of Critic (para 35), Methodology, History n Complicity with Power, Genealogy, fiction (para 37, 38), Description as Critique (para38)

Where do resistances emerge from? ( Break with Kant ), anti-originary freedom, anti-transcendental (paras 39, 40, 41, 42

  1. Historical struggles (para 41-42
  2. Conjecture v. universalism, a performance of critique by foucault (para 42, 43, 44

#008- To be, or not to be. Yes, that is always the real question.

Applying for the Law and Society Association’s Junior Scholars Workshop

These questions always really baffle me but I finally decided to say what I *really* think.

wtflsajsw

 

Thank you and goodnight!

UPDATE (15/03/2019): might be no connection or might be all connection but i just wanted to put it here that this application was rejected.

and im not completely unglad- who wants to go to conferences where they dont get this?

tenor.gif

well, not me. not anymore.

#007- How to Read?: Judith Butler, What is Critique? {Part II}

<Summary>

What are the possible critiques of the focus on self in the understanding of critique–> How does the self relate to the social?–>Two conflicting readings: Mutually exclusive v. mutually constitutive –>Relevance of Butler/Foucault’s understanding of critique for present world of “post-truth”–>Two opposing readings: very relevant v. highly explosive

————————————————————————————————————————————

This is a second part of a post I wrote to summarize the major themes which came up in the Critical Inquiries’ reading session of Butler’s essay on Critique and Foucault. Crossposted (with edits) on the Critical Inquiries website. The first part can be found here.

Self-Transformation v. Social Transformation

Reading 1: One major discomfort which in the beginning, all of the discussants in the group shared with the notion of self-transformation in Butler’s essay was its seeming affinity with an individualistic viewpoint. One of the discussants pointed out that the value of self-transformation seems limited especially in instances of social injustice, where it is not just individual actions but social structures and relations which inform such injustice. The discussant expressed her frustration with Foucault and Butler on this point and contrasted it with other critical works like Frantz Fanon which emphasise social transformation by recognising the power at play in social relations and not just individual self transformation.

Another discussant strongly echoed these views and further observed that critique needs to be rooted in social relations, adding that Butler/Foucault’s notion linking critique to self-transformation is not only something impractical (people don’t want to constantly self-assess and be kept on their toes) but also such idea of critique is extremely amenable to neoliberal systems which encourage self-improvement projects all the while hiding social forms of exploitation.

However, a third discussant, even while finding a lot of resonance with these points, pointed out to the violence of even social transformation projects, which have often used universalised ideas like truth, or solidarity to erase differences and perpetuate power in the name of progress. To which the first discussant replied that such formulation of violence assumes that violence is a one-off thing brought by social transformation, but in fact violence is very inherent and was always in the system. Which the third discussant accepted, and as something also which Butler’s essay understands, but wondered if nevertheless perpetuating the same brand of violence (present in universalised ideas in both the side of eg. positivist systems of oppression and in traditional critical projects of social change) for the purpose of social transformation somehow made it okay?

Reading 2: In general, this led to the question whether Butler/Foucault’s notion of self-transformation should be read in the background of an individual v. social binary whereby it can be categorised as individualistic? Later an alternate way was suggested, viz. reading self-transformation not as invidualised transformation but as subject transformation, while observing that subjectivity is rooted in social imaginaries or ‘regimes of truth’ like gender, labour, or race which produces subjectivities like man/woman, entrepreneur/worker, white/coloured/black. Such a reading would not reduce self-transformation to individualistic assessments and bring the social back in to it. Additionally, considering Butler’s/Foucault’s emphasis on critique as a practice which brings into relief how frameworks of (social) evaluation, truth regimes and the relationship of knowledge and power is constructed, it does not make sense to read self-transformation in way that excludes the social.

However, Reading 2 did not find much support as the other discussants thought that the even reading the self as subject is limiting because subjectivity itself is too particular and individualised and not generalised enough to address the level of the social. It ends up making critique a project of individuals not social communities.

Relevance of Butler/Foucault’s Notion of Critique: Critique as Virtue, Critique v. Critiques

Towards the end of the discussion, we could squeeze in some time to discuss the idea of critique as virtue which Butler propounds on Foucauldian lines in the essay, which led to a general discussion about the relevance of Butler/Foucault’s notion of critique.

Reading 1: One of the discussants pointed out that understanding critique as virtue, an aesthetic component, does injustice to the notion of critique itself. For critique is more than mere virtue and mere practice. Critique requires theoretical and existential judgement and is incompatible with relativism. It lives from a position of impotence (Ohnmacht) “but” from a commitment to truth and the universality of struggle for justice. This works also without Habermas, even only without Habermas.

Reading 2: In contrast to this, another discussant suggested that critique as virtue is only one reading of critique as per the essay and it is not meant to be the defining idea of critique. For Butler writes, “{h}e [Foucault] warns us at the outset that critique will not be one thing, and that we will not be able to define it apart from the various objects by which it itself is defined. “By its function,” he writes “[critique] seems to be condemned to dispersion, dependency and pure heteronomy.” “It only exists in relation to something other than itself.” For Reading 2, these portions were important as they seem to make it clear that the Butler/Foucault’s position de-links itself from any transcendental, universalist or neutral idea of critique and questions the very possibility of such definitions or understandings of critique. Consequently Butler/Foucault position also makes the brilliant move that it applies such questioning to its own notion of critique so that its own notion of critique cannot stand as/upon some all-encompassing, totalisation or ‘truth’ but rather only can be properly burrowed in specification to its particular circumstances, contexts and objects. Which would of course, also mean that Butler/Foucault’s idea of critique doesn’t radically de-legitimise other ideas of critique neither proposes that its own notion of critique is the only ‘true’ notion of critique, but nevertheless it sets itself apart from these other ideas of critique. This speaks to this approach’s reflexivity.

I think this brought the discussion back to the relevance of Reading 2’s notion of critique as opposed to Reading 1. The question posed was whether in the contemporary world of fake news, conspiracy ideologies and new religiousness, we really need an idea of critique that seems to open up to an “anything goes”? For the discussant asking this the answer was obviously no. She saw herself as more “traditionalist” and called for a renewal of a certain Hegelian and early Frankfurt School notion of critique. Such an approach will have to come to terms with the concept of totality. In this, she also found resonance with Derrida and his idea of deconstruction/justice as a truth to come. This idea she found in opposition to Foucault (and especially Butler!), even though these writers are often lumped together as ‘poststructuralists’, above all in the English-speaking world.

In contrast to this, the Butler/Foucault’s notion of critique was found to be super relevant for contemporary times by another discussant, as it practises movement away from the very violence of totalizing systems of knowledges and regimes of truth (eg. liberal democracy, neoliberalism) which many struggles today are questioning, though sadly they also keep up re-erecting new and less tolerant totalising systems in place of these (eg. racism, religion, patriarchy). According to the proponent of Reading 2, it was precisely to prevent such re-erection which in its totality always is oppressive (even of the more benevolent kind eg. critical sciences of the Habermasian notion) that Reading 2 of critique becomes so relevant. Additionally in this reading ‘critique’ itself doesn’t need a backing or authority of the likes of ‘truth’ but rather critique serves as its own compass, guiding without totalising, a particular practice/understanding of critique. (This is a point which Reading 2 wanted to independently emphasise upon in context of the contemporary rise of the far-right.)  The discussant for Reading 2 nevertheless thought that a critique of totalisation in practices of critique (which Butler/Foucault do make) needs to be distinguished from the “anything goes” approach (also widely, (if mis-)understood as ‘cultural relativism’) which is often attributed to Foucault and Butler’s ideas of critique.

Overall, the discussion left us with more questions than some definitive conclusion, but it was good to lay our positions explicit and understand them as one can only clearly do in relation to others.’ Though I see a lot more radical critical possibilities generally in Reading 2 of the essay as opposed to Reading 1.

 

#006- How to Read?: Judith Butler, What is Critique? {Part I}

From time to time, I attend the sessions of the Critical Inquiries Reading Group. For our last discussion, I proposed we read Judith Butler’s essay on Foucault’s exposition and practice of critique. The essay titled, What is Critique? An Essay on Foucault’s Virtue, can be found here. An excellent discussion of the text followed in the session, which I personally found quite useful, so I tried making a summary of what I thought were the discussion’s most prominent themes, along with the different ways of reading the essay which came up. What follows is what I wrote to this end and is cross-posted from the Critical Inquiries website.

Critique as the Suspension of Judgment

The discussion began with Butler’s position in the essay that the practice of critique, according to Foucault, lies in the suspension of judgment: ““critique” is precisely a practice that not only suspends judgment for him, but offers a new practice of values based on that very suspension.

The discussants agreed that this notion of critique marks a stark departure from many popular understandings of critique which see it as an instrument precisely to assess or judge a given system, value or practice. Thinking of critique in struggles and resistances against social injustices, and even critiques of law is often to think about the system’s problems and shortcomings. So the question that obviously remained with us, is how can then the practice of critique work as a suspension of judgment?

As Butler suggests in the beginning of the essay, we tried to understand this idea of critique as the suspension of judgment by contrasting it against Juergen Habermas’ notion of critique: “The perspective of critique, in his [Habermas’] view, is able to call foundations into question, denaturalize social and political hierarchy, and even establish perspectives by which a certain distance on the naturalized world can be had. But none of these activities can tell us in what direction we ought to move, nor can they tell us whether the activities in which we engage are realizing certain kinds of normatively justified goals. Hence, in his view, critical theory had to give way to a stronger normative theory, such as communicative action, in order to supply a foundation for critical theory, enabling strong normative judgments to be made, and for politics not only to have a clear aim and normative aspiration, but for us to be able to evaluate current practices in terms of their abilities to reach those goals.”

Even though our familiarity with Habermas’ philosophical enquiries was limited, many of the discussants found value in the idea of critique calling foundations into question and denaturalising social and political hierarchy. And at the same time, there was some doubt about the value of critique as the suspension of judgment: How would such an idea of critique ever be able to respond to social injustice? Wouldn’t any such neutral position (via suspension of judgment) itself be an apolitical position? To which one of the discussants ventured that maybe the idea of suspension of judgment and that of neutrality need to addressed as distinct concepts. In my opinion, this also makes sense especially given Butler and Foucault’s other writings which illustrate the very impossibility of a neutral position.

Function of Critique: On the Epistemological Uncertainty of Critique

The discussion so far still did not bring enough clarity on how exactly critique in the Butler/Foucauldian sense would function? Butler writes, “The primary task of critique will not be to evaluate whether its objects – social conditions, practices, forms of knowledge, power and discourse – are good or bad, valued highly or demeaned, but to bring into relief the very framework of evaluation itself. What is the relation of knowledge to power such that our epistemological certainities turn out to support a way of structuring the world that forecloses alternative possibilities of ordering? Of course, we may think that we need epistemological certainty in order to state for sure that the world is and ought to be ordered in a given way. To what extent,, however, is that certainty orchestrated by forms of knowledge precisely in order to foreclose the possibility of thinking otherwise?

To this, there was the proposition that this means that Butler’s reading of Foucault’s critique (as suspension of judgment) implies that there is no definitive world which can be a priori imagined in opposition to given systems. This implies no clear goal which has been pre-defined by the practice of critique. There was initial agreement among the discussants for this reading. But differences in opinion began to emerge when we started talking with scattered examples. Broadly, two ways of reading this assertion emerged:

Reading 1: It was proposed that this is a common and popular strategy among social justice movements, or even democracies generally. The goal of these (impliedly critical processes, in this argument) is not a priori defined but comes from discussion and lived experiences of people, in short, people shape the movement. In such a reading therefore, Butler’s implicit assertion that the goals of critique cannot be certain is rather obvious and already widely practised.

Reading 2: But then it also brought up the question of how this is so different from the Habermasian communicative ideal, where also critique does not a priori define the world to be reached, but rather this world emerges through rational deliberation in the public sphere? This point was felt to be especially important since Butler takes such pains to distinguish Foucault’s idea of critique from Habermas’. This led to the proposal that a different reading of this portion may be made such that when Butler talks about the function of critique being the undermining of epistemological certainty, she is not merely talking of the uncertainty of the end goal, or the kind of world which critical thought will ultimately produce, which even Habermas takes into account. Rather, she is talking of epistemological uncertainty of the very processes through which ‘the world’ or what Foucault called, the regimes of truth, come into being. This would then put even the practice of making critique into question, for even critique is an epistemic practice. Correspondingly, this reading would differentiate, for instance, critical practice of the Habermasian variety from Foucault’s notion of critique, since in the former the critical practice of rational deliberation in the public sphere still holds a certain epistemological authority, which the latter actually tries to put into question. In such a reading, Habermasian communicative action is an epistemological paradigm or ‘regime of truth’ which asserts its authority as a critical practice. Butler/Foucault’s understanding of critique would “bring into relief the very framework of evaluation” of critique, including Habermasian critique rooted in communicative action.

Self-Transformation as/or Disobedience to Authority?

Further differences in reading arose when we moved on to asking how Butler’s exposition of Foucault’s idea of self-transformation should be read. This is something which Butler explores in conjunction with Foucault’s relationship to Enlightenment thinkers. Butler writes about Foucault outlining the history of critique in Enlightenment, “In his view, critique begins with questioning the demand for absolute obedience and subjecting every governmental obligation imposed on subjects to a rational and reflective evaluation. Although Foucault will not follow this turn to reason, he will nevertheless ask what criteria delimit the sorts of reasons that can come to bear on the question of obedience. He will be particularly interested in the problem of how that delimited field forms the subject and how, in turn, a subject comes to form and reform those reasons. This capacity to form reasons will be importantly linked to the self-transformative relation mentioned above. To be critical of an authority that poses as absolute requires a critical practice that has self transformation at its core.

Reading 1: A rather interesting difference in reading arose when one of the discussants proposed that self-transformation in Butler’s account seems to imply a reflective evaluation of the reasons of obedience to authority and then accordingly taking a stance of disobedience. The discussant asserted that he can identify with this notion of transformation and the role of critique in it.

Reading 2: In response to this proposal a rather heated (if confused) debate emerged about whether self-reflective evaluation and consequent disobedience of given norms/authority is what Butler means by self-transformation when she relates critique to questioning the demand for absolute obedience. The alternate reading proposed was that rather, self-transformation is about decentring the self or the subject from given modes of authority or de-relating from authority, which would include an oppositional stance against authority. For she distinguishes earlier in the essay three kinds of practices, when asking what idea of self-transformation is at stake in Foucault’s idea of critique: a. “to conduct oneself in relation to a code of conduct”, b. “to form oneself as an ethical subject in relation to a code of conduct” and c. “to form oneself as that which risks the orderliness of the code itself.” The proponent of Reading 2 thought that Butler/Foucault’s notion of self-transformation corresponded rather to practice c., whereas Reading 1’s notion of self-transformation would correspond to practice b.

In my own opinion, the “begins” in “critique begins with questioning the demand for absolute obedience and subjecting every governmental obligation imposed on subjects to a rational and reflective evaluation” in the essay, actually refers to not the beginning of the practice of Butler’s or Foucault’s notion of critique, but rather to the ‘beginning’ of the history of critique in modern Western European thought as traced to the Enlightenment. Plus even if it referred to the former, I wonder how far one can reduce the notion of critique or self transformation to evaluation (which would already be contra to critique as suspension of judgment) or disobedience of authority in the Butler/Foucault notion of critique, especially since it says “critique begins” rather than “critique is.” It suggests that there is more there to the notion of critique and self-transformation than self-reflection and disobedience or questioning of authority.

Read part II of the discussion here.

#005- Data Behavorialism Discourse and its Constitutive Invisibilisation of Labour: Call for a Materialist ‘Methodology’

<Summary>

What is the Data Bevourialism Discourse?–>Methodological Implications of the Assumptions of the Discourse–>How Methodological Choices Affect Power Relations –> Example: Invisiblisation of Labour in Data Behavorialism Discourse

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Constituting the Discourse: Data Behaviourism and its Critics

The implicit belief accompanying the growth of ‘big data‘” writes data behaviourism critic Antoinette Rouvroy, “is that, provided one has access to massive amounts of raw data (and the world is actually submersed by astronomical amounts of digital data), one might become able to anticipate most phenomena (including human behaviours) of the physical and the digital worlds, thanks to relatively simple algorithms allowing, on a purely inductive statistical basis, to build models of behaviours or patterns, without having to consider either causes or intentions.” Thereon, she calls this new way of producing knowledge ‘data behaviourism.'[0]

A 2008 Wired article by Chris Anderson is perhaps the epitomic argument for data behaviourism. Titled “The End of Theory: The Data Deluge Makes the Scientific Method Obsolete.” The article makes a case for abandoning theory in a world that is happily experiencing a data deluge, canvassing, “This is a world where massive amounts of data and applied mathematics replace every other tool that might be brought to bear. Out with every theory of human behavior, from linguistics to sociology. Forget taxonomy, ontology, and psychology. Who knows why people do what they do? The point is they do it, and we can track and measure it with unprecedented fidelity. With enough data, the numbers speak for themselves.“[1]

The discourse on data behaviourism is thus constituted broadly by these two positions, both of which see data behaviourism as this possibility of numbers speaking for themselves. The one camp – the proponents of data behaviourism – see this possibility as a good thing, the dawn of a new sunny world. For they see in data behaviourism, an opportunity to do away with messy human things like human language, human perception and human judgment – all of which are more often than not, flawed. The other camp – the opponents of data behaviourism – see this possibility of numbers speaking for themselves as a crisis, the end of human language, subjectivity, human agency and semiotically-mediated social meaning-making. [2]

But both camps – be it either the proponents or critics of data behaviourism – give weight to at least one common claim in this discourse: That with big data, autonomic computing, and pre-emptive machine learning, numbers are speaking for themselves. Critics might rightly claim that the numbers are unrepresentative of the entire or actual population or the sample is not the population or N!=All [3], but this is not an erosion of the possibility itself! Given enough data or a sample which is equal to the population (think, perfect digital connectivity 24×7), the numbers could speak for themselves and more perfectly than now.

But…the critics go again, this scenario is scary because, what about human agency? If numbers do all the talking, how/when do humans talk for themselves?, and so on and so forth, the data behaviourism discourse goes.

 

The Politics of the Discourse: Ramifications of Implicit Methodological Choices for Power Relations enacted through Knowledge Creation

Human agency seems like a worthwhile value to preserve and save, something we shouldn’t give up to those ‘soulless, number-crunching’ machines, so the critics of data behaviourism seem to really have something there, but to be quite honest, lately I’ve had some deep discomforts with this discourse – and not just the pro-data behaviourism side of it – but the entire discourse itself. Why does this discourse work with the assumption of the possibility of numbers speaking for themselves (now or in the future)? What or who does this assumption serve? What or who does the assumption include or exclude from the discourse’s concerns? What kind of power relations or politics does such an assumption end up generating, supporting or reinforcing?

These questions began first gnawing at me when I read Rouvroy’s assertion that the data behaviourist paradigm produces no subjectivity.[4] I thought that was a strange thing to argue because it allows for a clear pitting of algorithmic ‘unconsciousness’/’mindlessness’ (no subjectivity or agency) against human ‘motivation’/’consciousness’ (yes subjectivity+agency) and then a valuation of the latter over the former. Given my sensitisation to the violence of universalised human subjectivity in a postcolonial setting, I find any hierarchical machine/human constructions instinctively suspect. Anyway, all this is just a hunch for now about the problem with saying pre-emptive algorithmic governmentality produces no subject, which I won’t explore more in depth in this post.

What I do want to think about however is, what does a discourse like this imply methodologically? The departure point for this discourse is the claims of a certain paradigm of thinking viz., of data behaviourism. The focus then is not on material algorithmic practices, but rather on the concrete linguistic practices (linguistic not as opposed to material, but as one aspect of the ‘material’, but linguisitic not same as discursive[5]) of making certain claims about algorithms.

Which is not an illegitimate direction of inquiry by itself, but it does become rather misleading when presented as a critique of algorithmic practices rather than as a critique of practices of the linguistic (ideological?) claims about algorithms. And misleading not merely in a casual way which can be corrected ex-post, but misleading in terms of the very constitution of the phenomenon of inquiry[6] i.e., it reduces an inquiry into algorithmic practices to inquiry about linguistic claims re algorithms. And thereby does not account for a whole set of actors and material lives in algorithmic practices. And this is the kind of discourse-shaping power of implicit methodological choices (practices of algorithms v. practices of linguistic claims about algorithms) which goes so unnoticed (“Who knew there even was a choice at stake here?” “Who knew the methodological choice of sources , eg. language v. action/practice, would have political implications?”) that elevates some practices over others (eg. linguistic over enacted) and thus wholly excludes accounting for experiences of living which don’t fit into this hierarchy of knowledge paradigms.

It allows for battling over the idea…the possibility of numbers speaking for themselves…to devote vast swathes of knowledge-creation resources to respond to this linguistic or ideological claim, when in fact, it constitutes only a very small portion of the lived algorithmic practices of some people (eg. tech-related academics, Silicon Valley evangelists) and likely no portion of the lived algorithmic practices of most people (eg. the regular Facebook user in Africa, the AMT HIT performer located in Europe). It is a hidden methodological choice which many scholars probably make without much awareness, but which allows us to sideline, be unaccountable to a majority of material algorithmic practices.

I am not trying to launch a blind attack on Rouvroy’s writings here, which speak to a certain academic rigour that I deeply respect and am constantly inspired by, but the unintentionally concealed choice of unit of analysis there, viz. linguisitic discourses, does make me question the politics implicit in such writing. (So it is still an attack.) Who is the critique speaking for? Who is it speaking to? Though at the same time I want to make clear that in no way do I endorse any data behaviourism. I think Rouvroy rightly takes a skeptical stance towards data behaviourism, but the methodology implicit in such a stance excludes most material practices of pre-emptive algorithms and therefore excludes all the material lives experienced around these practices.

 

The Invisibilisation of Algorithmed Labour in the Data Behavourialism Discourse

So what is excluded? What experiences exactly are excluded from our understanding of algorithms and their power when we make the methodological choice of a linguistic/ideological unit (eg. ‘data behaviourism)? The obvious one and of the first order which comes to my mind is the very practice of knowledge creation. In a way (pre-emptive) algorithms are (novel) practices of knowledge creation, which the data behaviourism discourse atleast in its camp of critics, does mention, but does not quite acknowledge. By which I mean it is something the discourse knows but does not take seriously, because inspite of this honorable mention, it mainly focuses its energies on showing how the blurring of the lines between the ‘reality’ and the ‘world’ in the ‘user’-oriented experience of pre-emptive algorithms leads to a loss of human agency and an erasure of subjectivity. We traverse into philosophical terrain populated by abstractions of agency, subjectivity, ‘world’ and ‘reality’, linguistic mediation, and wherein it seems we cannot recognise our algorithmed lives anymore. This is the opposite of saying that philosophy is unimportant or dispensible, for it is saying that a certain brand of ‘philosophy’ seems to give us conceptual moulds to fit our experiences of living and dying, rather than the other way around.

But taking the assertion that algorithms are practices of knowledge creation seriously would mean paying attention to its practices of creation. This is not some abstract rendition of reality and the world, of noumena and phenomena, of concepts like language or agency which can transcend the specific material configurations of algorithmic practices, or of positions of knowledge creation which keep neutral. Rather, it is a methodology which centres material practices but not only linguistic material practices, but importantly, the enacted material practices, in short practices, which leave marks on bodies.

When one methodologically decentres oneself from language, one allows oneself to acknowledge that knowledge creation by algorithms, i.e. the construction of ‘reality’ through data points, does not so much imply the end of subjectivation and the implosion of human agency. Rather, it involves subjectivation in novel forms namely through renewed processes of capitalistic labour appropriation in the attention economy of browsing, watching, collating our lives as data. The new subjectivation enacts in acceptance and even celebration of the quantified self. [7] This is not a disappearance of subjectivation but a new form of subjectivity propelled by agencies of sharing, writing, expressing, liking, searching, retweeting on the internet. Add to that the actions of those who work on creating codes, choosing methods of machine learning, choosing the data sets for supervised or unsupervised learning, creating or not creating corrections. And it is upon such precise actions that capital acts to appropriate them as labour either in a formalised IT industry or in settings where we understand, nay, subjectivate, ourselves as “internet users”. Labour which is then fed to the quantified self.

Think ouroboros.

Serpiente_alquimica

In short, the politics of methodologies is important to acknowledge. A linguistically focused philosophical methodology allows us to separate the domains of subjectivity from political economy upon the logic that “They are related but not indispensable to each other.” The separation allows the techniques of subjectivation to continue, for subjectivity emerges from practice and not from conscious meaning-making that is either internal to self or in community spaces (like the ‘public sphere’.) And of course the continuation of such subjectivation serves some more than others. Methodological choices, even of the second order as here in studying algorithms, have serious political consequences.

EDIT (11/30/18): Stumbled upon this tweet by @hollyherndon which pretty succinctly sums it up in the terminological choice context.

hoho

EDIT 2 (11/12/19): Some extremely intriguing work which is bringing labour into the discourses of big data, ML and AI: (1) Kate Crawford and Vladan Joler, The Anatomy of AI https://anatomyof.ai/

(2) Kate Crawford and Trevor Paglen, Datafication of Science https://www.hkw.de/en/programm/projekte/veranstaltung/p_146043.php

Kate Crawford in general seems to be on this very interesting research path of connecting the discourse of AI/ML and labour and I really appreciate that!

 

[0] Antoinette Rouvroy, The End(s) of Critique: Data Behaviourism v. Due Process, in Privacy, Due Process and the Computational Turn (Hildebrandt et al. eds.), 2011.

[1] https://www.wired.com/2008/06/pb-theory/

[2] Supra n. 0

[3] Mireille Hildebrandt, Smart Technologies amd the End(s) of Law: Novel Entanglements of Law and Technology, 2015. p. 40.

[4] Supra n. 0

[5] in the sense she explains the difference in Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning, 2007.

[6] in the sense she explains phenomenon in Karen Barad, Meeting the Universe Halfway: Quantum Physics and the Entanglement of Matter and Meaning, 2007.

[7] https://en.wikipedia.org/wiki/Quantified_self

 

#004- Why Examining The Nature Of Spirals Is Crucial To Thinking About Good Media Licensing Designs

If you are bored by law and licenses and big smart-sounding technical words, maybe you will appreciate reading a more Sophie’s World view of it- This essay certainly attempts to connect some improbable dots. More importantly, to think about good design in law, with some creative imagination.

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This is a story about media licensing in India. And this story urges telling because something as arcane as media licensing in India manages to hit the workings of the whole world on and off. That’s because the world operates like a Rube Goldberg machine, and seemingly inconsequential occurrences in one part of it, many times, have a significant impact upon and open up other apparently unrelated interstices in far-away regions (as The Economist knows well enough). Therefore, when the Government of India proposes The Geospatial Information Regulation Bill, 2016 for the licensing of one kind of media, viz. all maps of India (including online maps) – while it may seem like merely an “India” issue- it actually has implications for the very way we have become used to the easy, shareable way of employing data about geographical terrains in the past few years across the world. Be it Google Maps, OpenStreet Maps, AirBnB, or just your next Uber ride- maps have become woven as an essential part of the fabric of our everyday lives in the 21st century. So when a country of 1.2 billion (and a consistently increasing internet user base) decides to regulate the creation and distribution of maps in this globally connected world through a State licensing regime, it does become urgent for the world to understand what exactly is driving it, and why exactly are things being driven in this manner. And the explanation for this lies in the larger story of media licensing in India itself and its legal design.

A tale of licensing of media in India has The Indian Telegraph Act 1885 placed somewhere at the beginning (for reasons which will reveal themselves later). And if I spoke of it in a straight line, this particular tale of licensing, which I am about to talk of now, should end at The Geospatial Information Regulation Bill, 2016. But sustainable stories that are worthy of listening to are often spirals – not linear, not even circular – as anyone who has had a brush with Arabian Nights will tell you. So it shouldn’t matter that I am beginning this story at the “end” of the line, because one does need to begin somewhere, after all, to make conversation. So with that little tidbit in mind, here we go…

On the good day of 4th May 2016, the Ministry of Home Affairs publicized The Geospatial Information Regulation Bill, with a 30 day period for the solicitation of public comments (The Draft Bill can be found here and you should send in your comments.) A comprehensive overview of the salient features of the Bill is available here, and even better, a cheatsheet is here (you gotta thank the internet for its awesomeness!) But what is relevant to our story is that the Bill mandates that “no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever,” without the acquisition of a license for this purpose from a so-called Security Vetting Authority to be constituted under the Act (see Section 3(1), Draft Bill).

What does such mandating of licenses mean? Okay yes, it is maps now (read Section 3(1) with Section 2(e) of the Draft Bill, whereby the latter section lays down that the subject of such licenses includes “surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes”). But it has already been other things before. “Geospatial imagery or data” is only one more element in the larger universe of human expression, which such media licensing seeks to govern and has sought to govern in the past…


Licensing expression on airwaves

And thus we step into 9th February 1995, when the Supreme Court decided in what is often dubbed as the “Airwaves Case”, the question of whether a private broadcasting entity has an absolute right to use airwaves to broadcast its expression? Or does a system which provides for the use of such airwaves only upon the issue of licenses by the Government in the name of the “public” or its citizen will pass the Constitutional standard of the right to freedom of speech and expression as per Article 19(1)(a)? (And believe me, passing Constitutional standards is super important yet for laws to be legal in this country- oh yes, there exists a category of “illegal” laws, which might sound paradoxical. But this sweetly brief explanation should make it clearer. Basically, think of Section 66A of the Information Technology Act from last year, for example, which is “a law” alright- because it was legislated and passed by our Parliament- but illegal, because it is unconstitutional.)

Anyway, moving past our little detour over there and coming back to airwaves…This is how the Court responded to the licensing question: “In this country, unlike in the United States and some European countries, there has been a monopoly of broadcasting/telecasting in the Government. The Indian Telegraph Act, 1885 [hereinafter referred to as the “Telegraph Act”] creates this monopoly and vests the power of regulating and licensing broadcasting in the Government. Further, the Cinematograph Act, 1952 and the Rules made thereunder empower the Government to pre-censor films. However, the power given to the Government to license and to pre-censor under the respective legislations has to be read in the context of Article 19(2) of the Constitution which sets the parameters of reasonable restrictions which can be placed on the right to freedom of speech and expression. Needless to emphasise that the power to pre-censor films and to grant licences for access to telecasting, has to be exercised in conformity with the provisions of Article 19 (2).” (see para 49 of the judgment)

Two things I would like you to notice here, dear reader…One is that the mysterious Indian Telegraph Act, 1885, which was there at the beginning of this story, is starting to show up again. And second, the airwaves that are the subject of licensing here (akin to maps under the Geospatial Draft Bill), are also actually hertzian waves (“in the present case the controversy centres round the use of airwaves or hertzian waves”, see para 52 of the judgment.) And Heinrich Hertz and hertzian waves look like this:

hertz

Hertzian waves are thus, in essence, helices and helices are a kind of spiral- which also brings us back to our conversation about the nature of a good story being a spiral, right at the beginning of this article.

I know what you are thinking: What does this entire thing have to do with media licensing systems in general and the licensing of maps under the draft Geospatial Bill in particular? Hm, great question! Well, what I think what I am trying to do with these concepts of spirals and refraction (which will also appear soon enough) is this: I am trying to hammer at the surface of this idea of licensing in law, in the hope that by doing so, this idea will reveal its true nature (if there are, in fact, things like true natures). Soooo, let us see, yeah? …Let us be patient yet…


 On the Nature of Licensing

The funny thing is that the Airwaves Case is actually one of those landmark judgments which is thought to uphold citizens’ right to freedom of expression under Article 19(1)(a). That’s because it pronounces that “airwaves are public property” which need to be utilized for “the greatest public good” (see para 190 of the judgment), and that this end is most appropriately achieved through a licensing regime where the State has monopoly over the airwaves in the name of “public interest.” This latter bit is evident when Justice Jeevan Reddy declares, “I have also mentioned hereinbefore that for ensuring plurality of views, opinions and also to ensure a fair and balanced presentation of news and public issues…” (that is, public interest, or from a citizens’ rights/diversity of expression perspective) “…the broadcast media should be placed under the control of public, i.e., in the hands of statutory corporation or corporations, as the case may be…” (that is, it should be licensed by the State via a statutory corporation)“…This is the implicit command of Article 19(1)(a).” (see para 204 of the judgment).

So in at least one version of this tale, licensing is not an evil State control mechanism over media- in fact, it is the good guy. Which is interesting, considering that the last time this country was talking about media licenses, it concerned the issue of net neutrality and the licensing of Over-the-Top services – and in that version of the story, licensing was bad, very bad! (that is, from a citizens’ rights/freedom of expression perspective- see this, this, and this for explanations on how). But not just that, even in earlier versions of this tale, a licensing system has been your evil character mostly- like in the colonial State’s bid to control people’s expression through the enactment of the Indian Telegraph Act, 1885 (ah, there we have that Act again! – see Ranajit Guha, Transmission, in Aravind Rajagopal (ed.), The Indian Public Sphere, for elaboration on how.) And then of course, since Sakal Newspapers and then in the Bennett Coleman judgment, the Supreme Court has righteously viewed media licensing (in these cases, the licensing of newspaper pages and of newsprint) as a dirty tool which the State deploys to control media and violate Article 19(1)(a) of the Constitution. Not that such righteousness is not rightful- there certainly seems some ground to say that the State via newsprint licensing was, in fact, through the First and Second Press Commissions, trying to control how, where, and with what content, people’s expression flowed. But then you also have Justice Mathew expounding, in a dissenting opinion in Bennett Coleman, on how the licensing of media is actually a boon for the citizen since it advocates media diversity, media ownership and fosters the values of democracy. And in this manner, our bad guy (viz. a licensing regime) is once again, reverted to some sort of antihero role.

What I am trying to illustrate through this accounting of events is that, taken just by itself- what the nature of licensing is like, is not that clear, nor black-and-white. Which is why one needs to be careful while thinking about what licensing means under the Geospatial Information Regulation Bill, 2016. I would advise that jumping to reactionary conclusions about its evilness would not be the wisest. But that is also to not say that I am advocating maps licensing the way it is designed under the draft Bill. Rather, I am saying that we need to understand the true nature of licensing (if indeed there are things like true natures), instead of rushing to either put it on a pedestal or whipping it to death, as and when the situation pleases us (which is what we have been doing with our legal design for the past 150 or so years). What is this hurry? There is no need to hurry! Rather we need to ask some complex questions: Is licensing our saviour or our villain? Both or neither? And why the heck does it seem to move between these roles?… And as we reflect upon these questions, the significance of spirals will start dawning on us once again…


The Designs of Media License Ecologies and Their Role in Refracting Human Conversations

So I propose this: The reason why our media license designs seem to play this shadows game with us – where at one moment they’re all things nice and democracy, and then in another, they’re set out to throttle all our fundamental rights – is because the lenses through which we normally look at them are not spiral enough. And to get a comprehensive sense of the whole story, we need to get some spiral lenses. Because the nature of licensing…the story of licensing, like the nature of all good stories- like I said earlier- is spiral, not linear, not circular.

What does that really mean? Think of it like this: If you took a piece of paper and then moved a pencil over it to draw a spiral, you’d think that you have come up with a design…let’s say it is a legal design, let’s say it is the design of a license ecosystem. But since it is you/your hand which has moved, you would be able to see different parts of this magnificent spiral design only when you yourself travel. And when you travel, your context changes. So in a particular context, you only see one part or one side of this spiral- which results in the licensing regimes appearing as either good or bad idea in a given context. For example, in the context of the Geospatial Draft Bill, a licensing regime seems like a bad idea, and in the context of the Airwaves Case, it seems like a good one. It is because you have moved, and have thus changed your own context. So you cannot see the whole of the spiral design of licensing.

But there is an alternative to this! As a friend of mine rather ingeniously suggested last evening…There is actually another way to draw this spiral! Rather than moving the pencil, you move the page around the pencil, around yourself…And voila! Suddenly the tables are turned! Now it is not you/your hand which is moving, but rather the spiral (the license ecosystem, its legal design) travels all around you to reveal itself unto you! And since you have stayed put at your calm coordinates all this while, with no whirlwind of changing contexts, you can actually examine its design now at leisure…

So now that we are here, with the entire legal design of media licenses traveling around us, what do we see? We see that the ecology of media licensing is actually just a tool to refract human expressions, human conversations. And what does the very scientifically-established phenomenon of refraction do? It bends energies. Energies like light, and energies like human conversations. Imagine: You place a license ecosystem in that universe of expression (the very universe of expression that we talked about at the beginning of this article), and what happens? As human conversations pass through this license ecosystem, they bend. They change their direction, their path. Media licensing somehow manages to rework and reassemble how humans interact- as would be evident by either the proposed licensing of newsprint in Bennett Coleman, or by the proposed licensing of maps under the Geospatial Draft Bill, or by the State-monopolized licensing of airwaves in the Airwaves Case, all of which had an impact on how information would flow with either newspapers, TV, and now maps, albeit in different ways. In other words, they reworked and reassembled human interactions, they bent and changed the direction of human conversations.

And reworking and reassembling and changing directions of human interactions, in my humble opinion, are not per se bad things. I find rather little value in maintaining the pristineness of words or expression, even though there is a school of thought which does uphold it as among high-valued principles (see Martin Heidegger, The Question Concerning Technology). But for me, a good license ecology is dependent on what it produces, or in which direction it does manage to bend human interactions. Refraction can produce both misguided light (like the coin which appears closer to the eye when kept under water), and rainbows (which is what happens when light passes through a prism.) What it will produce depends on the design on the refracting surface (read: design of the relevant licensing regime) and not the phenomenon of refraction itself. So while we cannot do a lot about the existence of this refraction phenomenon, we can actually think of better designs to create licensing ecologies that produce rainbows, rather than misguided light, in human interactions (see Andrew Feenberg, Questioning Technology.) How such media licensing ecosystems might be designed, and what they might look like, remains an open question. But an endeavor towards thinking about them, I think, would be a much more prudent proposition than applauding or dismissing licensing regimes altogether.

We are drawing towards the end of this story of media licensing, and I would hope that you have enjoyed listening to this very spiral story. The nature of a spiral is such that it makes sense to talk about its “beginning” and its “end” only after it has been drawn. For a line segment, you know (and need to know) the beginning and the end even before it is drawn; for a circle, it never makes sense to talk of a beginning or an end. But a spiral, ah! It has this quality of revealing its  That’s the very reason why a spiral is of such interest to people who want to seriously think about, not just license ecologies in particular, but also more generally, about legal design – not just in India but everywhere in the world where we are making these kinds of decisions…

#003- Love In The Time Of No Maps

<Summary>

This is one kickass article (even though it is longish) which you should read. It gets really fun towards the end (point 3 onwards), I promise!

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The obsession of States with maps is a phenomenon which is actually quite ancient. Beginning with the zealous guarding of maps through an intricate ecology of sailors, sea captains, ministers and Spanish royalty in the 15th century, even as the “New World” and alternative routes to “the East” were being discovered, to the excellent account which Rudyard Kipling gives in his book, Kim, which is, in fact, a book about how two different States fight over the mapping of mountain terrain— the mapping mania, and the struggle to gain control over maps is probably at least as old as the idea of the modern State itself, if not older.

So it should come as no surprise when our beloved State now releases a draft of The Geospatial Information Regulation Bill, 2016 to “regulate the acquisition, dissemination, publication and distribution of geospatial information of India which is likely to affect the security, sovereignty and integrity of India and for matters connected therewith or incidental thereto” (see Preamble, Draft Bill). Have you noticed how the concern of State eventually always becomes its own protection and fostering its own existence at the cost of everything else? If you have not noticed it yet, then this Geospatial Information Regulation Bill is a nouveau classic illustration. With its righteous (if unspoken as articulately) justification on the grounds of “nationalism” and “national security,” this Bill (whose basic features have been concisely explained here), in a single stroke, manages to puncture all kinds of aspirations for privacy, open data sharing, human dignity, constructive speech or expression, and well, just plain reason. Here’s how…

Paranoid State Problem 1: The “nationalist” need to control mapping through licensing regimes (read: colonial state continuities!)

Licensing of media, while an important tool on many occasions, for the allocation of natural resources like newsprint, and spectrum, and airwaves, for various kinds of media, has actually has the most consistent history in India of being used as a method of State control over what people talk, how people talk, and to whom people can talk (see Report of the Second Press Commission of 1978 and the discussion surrounding it). Ranajit Guha traces this State paranoia regarding people’s conversations back to the 19th century. This was a time when the British were greatly frustrated with all the “rumours” which used to float about then – these “rumours” also had a role in fueling the 1857 revolt (it was a “rumour” about the pedigree of army cartridges which served as “the spark in the powder keg,” so to say). But basically, the colonial State’s frustration over rumours was the frustration over its inability to control people’s conversations. And this is where the idea of a media licensing regime was born in India in the form of the Indian Telegraph Act, 1885. And this painfully sweet colonial fruit has spread its seeds in Indian law for well over a hundred years now, surviving the Constitution and now thriving well into the 21st century (see Rajeev Dhavan, Moral Consensus in a Law and Order Society, in Aravind Rajagopal (ed.), The Indian Public Sphere. OUP 2009, pages 92-93).

It is in this trend of events that the current draft Bill on geospatial mapping can also be located. Section 3(1) of the Draft Bill lays down that without the “general or special permission” of a so-called Security Vetting Authority (which is provided to be set up especially under the Bill), “no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever.” Section 3(3) additionally specifies that such permission, if deemed appropriate, will be granted by the authority “within three months from the date of receipt of an application,” but given that it is India, you know that could be several years (plus 3 months is already a hell lot!). And thus, stepping in the wake of the colonial State, another attempt to control the free flow of information has been designed by the contemporary State of “free India.” Look at what they already did to community radio in the name of “nationalism” and “security”! It’s the same story with maps here.

Paranoid State Problem 2:  The “nationalist” suspicion of crowd-sourced and opensource or any easily shareable mapping data (read: unconstitutional violation of free expression!)

Section 3(1) of the Draft Bill reads like this:

Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Security Vetting Authority, no person shall acquire geospatial imagery or data including value addition of any part of India either through any space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles or terrestrial vehicles, or any other means whatsoever.” (emphasis added)

So what constitutes “geospatial imagery or data”? Well, the funny thing is those terms are not exactly defined under the Bill (bad legislative drafting has become so the norm that it is not even worth commenting on). But rather, the term “geospatial imagery or data” is included under the category of “geospatial information,” and that is defined as following (see Section 2(e) of the Draft Bill):

Geospatial Information means geospatial imagery or data acquired through space or aerial platforms such as satellite, aircrafts, airships, balloons, unmanned aerial vehicles including value addition; or graphical or digital data depicting natural or man-made physical features, phenomenon or boundaries of the earth or any information related thereto including surveys, charts, maps, terrestrial photos referenced to a co-ordinate system and having attributes.”

I know what you are thinking by this point, and I am thinking the same thing: My, that’s one tall order! Especially that bit about “any other means whatsoever” in Section 3(1)! I mean, it’d have been a tall order even in the time men and women only drew landscapes with flower pigments and charcoal (thus “mapping” the terrain), but in an age of awesome phone cameras, Google Maps, OpenStreetMap, Foursquare, Facebook checkins, your Ola and Uber rides, Whatsapp location share, phone and car GPS systems and the very cute Mapbox, it becomes truly ridiculous! What the paranoid “nationalist” State is trying to tell you is that it owns your surroundings. It owns everything you see around you. And all this, with utmost rudeness- there is no subtlety at all! But then, as has been said, the nature of law, is violence. (see Robert Cover, Violence and the Word, Yale Law School Faculty Scholarship Series, 1986.)

This discomfort with accessible mapping though will also of course, clash with the guaranteed right to the freedom of expression under Article 19(1)(a) of the Constitution, since “right to information” (and therefore, “geospatial information”) has been read as a part of Article 19(1)(a) since at least 1975 (see Indira Gandhi v. Raj Narain). Though Article 19(1)(a) is limited by Article 19(2) which covers “laws in the interests of the sovereignty and integrity of India, and  in the security of the State” with the shroud of constitutionality, the law in question nevertheless needs to qualify as a “reasonable restriction.”

The Shreya Singhal judgment from last year, delivered by the Supreme Court, lays down (by referring to a 1989 Supreme Court judgment) that what constitutes a “reasonable restriction” is as follows (see para 38): “The anticipated danger…” [eg. of national insecurity, which the law in question might be trying to erase] “… should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark in a powder keg.

It is true that in the Shreya Singhal case, the discussion was not exactly around “sovereignty and integrity” and “security of the State” but rather around “public order” in context of Article 19(2). But the framing of Article 19(2) also amply illustrates that “reasonable restriction” is a requirement common to both these grounds. So it might as well be extended to “sovereignty and integrity” and “security of the State.”

So then the question becomes this: Will this crazy regulation of mapping as per the draft Bill survive the standard of Article 19(1)(a) of the Constitution? It would seem not, since this specimen of legal design to basically even prevent you from drawing a map for a friend of yours who is new in town in the interest of safeguarding of national security etc. (as the Preamble of the Draft Bill does state), should qualify as “remote, conjectural and far-fetched.” Shouldn’t it? So I guess what I’m saying is this: The Geospatial Information Regulation Bill, 2016 can also be argued to be declared a pretty unconstitutional bit of legislative draft.

Paranoid State Problem 3: The “nationalist” fear of an internet which allows for easy flow of information (read: what happens to the State when citizens don’t need intermediaries?!)

This is one of the basest fears which probably all of us have dealt with at some point in our lives and loves: “What if my lover doesn’t need me anymore? What if he is able to fulfill all his needs himself? Will I still be relevant? Or should I kill myself?”… We have these thoughts and then we lash out, picking up a stupid fight when our girl/boyfriend goes out and has a good time with her/his own bunch of friends, and without us! (but we never want to admit it we felt that bad, oh no!) It’s the same with the relationship between the citizen and the State- the State the insecure girl/boyfriend, the citizen the (potentially) joyful girl/boy he fell in love with, and the internet, her/his happy friends who show her/him a good time.

Actually, come to think of it- all the three Paranoid State Problems (PSPs) outlined here are very much part of the dynamic of this particular relationship, hmmm…

Anyway, so what does our paranoid State do in the circumstances? It drafts this (see Section 4, Draft Bill):

Save as otherwise provided in this Act, rules or regulations made thereunder, and with the general or special permission of the Security Vetting Authority, no person shall disseminate or allow visualization of any geospatial information of India- either through internet platforms or online services, or publish or distribute any geospatial information of India in any electronic or physical form.

And also, Section 5, the most relevant portion of which states:

“…No person shall, in any manner, make use of, disseminate, publish or distribute any geospatial information of India, outside India, without prior permission from the Security Vetting Authority.”

“No, I hate your friends, you can’t see them anymore!,” says the jealous boyfriend. “You always go out, you never spend any time with me. Do I not mean anything to you?,” moans the insecure girlfriend. Which is sadly what this draft Section 4 is: “How dare your discuss the conversations we have, the problems we have, our personal matters (our “geospatial information”- Section 4) with your friends (“publish or distribute in any electronic or physical form” i.e. friends like media, and especially that new media threat, the internet – Section 4 again) without first consulting me ?!! :O (“without prior permission”- Section 5),” they say to one another.

There’s more: The lovers insist that the other gives them their personal email passwords, and unlocks his/her phones for them, and lets them read all their messages. So we’ve Section 18(2) of the Draft Bill, saying: “The Enforcement Authority shall, if he has reasonable cause to suspect that any contravention of the provisions of this Act, rules or regulations made thereunder has been committed, shall have access to any computer resource, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system.

And Section 18(3):

For the purposes of sub-section (2), the Enforcement Authority, by order, direct any person in charge of, or otherwise concerned with the operation of, the computer system, data apparatus or material, to provide him with such reasonable technical and other assistance as he may consider necessary.”

So in this bid to make themselves feel relevant and secure, our lovers- the citizen and the State- take away the other’s freedom, telling themselves that the world/their lover is out there to get at them (as evident in the liberal citizen’s lament that the State is being unfair and unjust, which may not be untrue, no, but it is also only one part of the story). Or they start telling themselves that if their lover begins to find meaning elsewhere, they are nothing (as is evident in the State obsession with controlling how the citizen maps her home, maps her way in and out of it…Is she secure enough?- Is he doing enough to keep her secure?- because how can the State feel relevant without doing enough for his beloved citizen?)

And thus somehow this whole relationship has managed to become a draining codependent one, where neither one is happy, but neither one seems to be able to quit the relationship either. They- the citizen and the State- us, we… started out with a dream to create but now can only spew little bits of hatred and hurt (like this Geospatial Information Regulation Bill and protests/petitions against it) at each other. How the hell did we get here?

 

A sanitized/serious (a.k.a. devoid of love) version of this article first appeared on The Wire (who are super nice and kind people btw- just a wee bit skeptical about the practicality of love- so if you want a more current-affairs approach, you should read the Wire article too! :)).