The Information Law Crisis

Let me start with a cliché. Information and knowledge are increasingly important forms of wealth. Not only are they critical inputs in the production of physical goods, but they are now among our most dear personal possessions. What is more valuable to you, your family photos or the computer that stores them? Your access to news from your family and friends or the phone you’re using now? You may have paid more money for your phone than you do for access to Facebook (though internet access and implicit sales of private information make that a difficult question to answer), but I don’t think it’s a stretch to say that many of us would pay more to avoid the loss of online sharing than the loss of a particular phone. Even if we have preferences, the latter can be commoditized, while the former is only valuable to us because it cannot.

The world has radically changed in the last decade. Funny videos, pictures from friends’ weddings or vacations, podcasts, indie games, personal news accounts from war zones: we are awash in a mass of unique informational goods that are perhaps, in aggregate, far more important to us than the particular physical goods that we use to consume them. It is our information and capacities to produce and disseminate information, not our lands or our widgets, that many of us value most in modern life. Sustenance is relatively cheap (if only we could more generously and equitably provide it); enjoyment is becoming dependent on information access. Our law is not designed for such a world, and its creaking joints show ever more clearly the signs of crisis.

I want to make a quick and admittedly unsubstantiated point here that flows from a certain understanding: the central struggle in law is the degree to which a society’s coercive resources should counteract or reinforce existing wealth distributions. What counts as protectable value? What rights to resources does an individual have? What is he or she obligated to share? When social change fundamentally transforms the value of resources and, particularly, what individual capacities are valuable, law eventually becomes a venue for contesting the lines that divide access to the new forms of value. The claim I’ll be making in future work, and the thrust of my theory of law more generally, is that the social and economic changes of the information revolution are only now becoming realized in a legal revolution. We are held back by not seeing the relatedness of the great legal-informational disputes of the last few years: from copyright to patent to drones to grocery store loyalty cards to doxing to government surveillance. All are questions of basic entitlements in informational goods.

This Has Happened Before

Law struggled to deal with the upheavals wrought during the industrial revolution, when the hegemony of land ownership gave way to the ability to acquire machinery and invest in projects uniting labor and machines. Then, we often failed to understand that the law no longer chiefly concerned the regulation of small and large landowners and land laborers, people who could interchangeably derive profit from soil. Instead, workers were becoming more obviously a specific and mere factor of production, their individual power to withhold labor -- in crowding cities with a money economy -- no more compelling than that of so many nuts and bolts.

But unlike cogs and wheels, workers could talk with one another, come together, create their own collusive social order, and credibly threaten disharmony. With the social clashes stemming from radical changes in economic life came legal clashes. Wage and hour laws, basic housing regulations, workplace safety rules, and other statutory and judicial innovations all represented breaks from the agrarian legal past that privileged and protected the use and ownership of soil, that assumed possession of a deed was possession of an adequate measure of security in life itself. Social security required more than protection of real estate rights if human beings were to have meaningful lives while participating in ever more complicated patterns of cooperation, patterns not principally dependent on dirt.

It’s Happening Again

Of course, the economy, like all life, is always changing. But we are now in the midst of a decades-long process of turning many aspects of our daily lives over to platforms for information. Anything you can think of that might be made better by being configurable is probably on its way to becoming a software platform. Phones, watches, televisions, thermostats, cars, musical instruments. Many familiar objects can be made better by integrating or even becoming computers. They will be new platforms for changeable, complex informational interchanges (the essence of a software platform) rather than more or less inert lumps of metal, confined to prescribed informational rails from foundry to landfill. And importantly, it will be the information itself, not the particular platform, that is the most valuable. It is not yet, however, well understood how access to that information should be allocated. Instead your privacy, your informational market power, and your ability to participate and withdraw are all subject to shifting technological whims. Not considered opinion, but the dominion of whatever is possible at the moment.

Law is not currently constituted to deal well with the things we are coming to value and with the lives we want to lead. This emerging crisis can be seen most clearly in disputes over privacy and intellectual property. Government surveillance, information privacy, hacking, private surveillance, drones, patents, copyright, fair use. All these concern the drawing up of baseline entitlements to informational goods: creative products, information about our private lives, and the ability to use informational inputs to derive and enjoyment and produce new informational outputs. We have lines, but they are arbitrary and inconsistent and fail to track what matters to us.

After losing a battle in the Supreme Court to strike down the ridiculous Copyright Term Extension Act of 1998 (that retroactively extended the terms of copyrights to the lifetime of the author plus an additional seventy years), Larry Lessig lamented that he “had failed to convince them that the issue here was important.” They had failed to see how copyright’s lengthy terms truly hurt the lives of Americans. It used to be that if one made videos or writings that copied from America’s cultural heritage, some of your friends or teachers might see. It may have been technically illegal, but you would almost certainly never interact with the law. The good you produced was not valuable enough to register. Wide, cheap dissemination, the democratizing feature of the information age, changes all that. Copyright now impedes our abilities to fill videos we share with the music we love or with clips from America’s past. Patent is an absolute wreck of lost opportunities. My own ability to control the information I share now utterly gone, at the mercy of whatever technological innovations I fail to keep up with, whatever browser settings or updates I forget to use, whatever cryptographic cloak I can put on.

Consider, too, the laughable (as a policy if not formally) emphasis the law now places on information’s particular, but irrelevant, embodiment when determining whether the Constitution should permit the government to snoop. Is government tracking of your movements problematic only because government agents attached a GPS device to your car, your physical property? Is government’s ability to see inside your home, using thermal imaging or other technology, only problematic because the technology is unusual? Do we not have any reason to fear government or private collection of our communication metadata (the times and targets, but not contents, of our phone calls, for example)? On the other hand, absolute entitements to the information we produce is unworkable in a society in which crime detection also depends on information access.

My point is not at all to push a libertarian agenda but only to begin to show the mismatch between the important underlying questions of informational line-drawing and the law we have, focused as it is on attributes of these disputes that are poorly related to those questions.

The Beginning

The lines of control over information are in chaotic flux. Just as the industrial revolution led to demands for labor reform -- to protect basic human values from the “natural forces” of the market as it ripped apart the old and commoditized labor and housing -- so too the information revolution is stressing the law built up to draw compromise lines in a world of skilled labor, consolidated media companies, ample self-help opportunities to preserve privacy, and very limited means of mass distribution of intellectual works.

The barriers to mass dissemination of works of art and technology are increasingly purely legal, not technological. Our privacy is increasingly beyond our individual abilities to protect -- both from our government and from other people, corporate and individual. The ability to marshal informational goods into new ones is increasingly difficult for legal, not technical reasons. And our law fails to grapple with this new reality.

This post, obviously, is very short on specifics. But I wanted to record here some general thoughts about the teachings of disputes over copyright (as in Eldred v. Ashcroft), patent (the formalism of Myriad Genetics), government secrecy (as in the Wikileaks and Snowden sagas), and consumer privacy (our ability to lead private lives while also participating in modern life through Facebook, Google, and other information platforms or even by using credit cards or buying groceries). The common obstacle is a natural resistance to changes in our appraisal of baseline entitlements to information. Eventually there will be a true end to the informational Lochner period from which we are emerging.