Lyria Bennett Moses, Fleur Johns, Daniel Joyce
Shifting forms can create toeholds for thought and action. Complex social phenomena that
tend to confound diagnosis may sometimes be grasped obliquely in the course of
their transformation. The aim of this special issue is to trace mutations
underway in associations rendered or experienced in data. 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 some 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”.
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 associations 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-twentieth 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 nineteenth 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 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”; 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
realised in data, not reducible to the expression or defence 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. They write also of data as a medium for publicly
imagining and re-imagining those relations. Distinct legal and political
cultures predispose publics towards adopting quite divergent ways of perceiving
and representing global conditions in data, contributors to this volume show. Only
by taking account of this divergence and variety, Sheila Jasanoff contends
herein, might we recognize “official forgetfulness and underestimation” in the
“data practices of ruling institutions” and discern the unanswered pleas for
justice embedded in those. We invite you to read and engage with these
provocative works and look forward to tracing their afterlife in your writings.
Photo credit: Dominik Bartsch via Flickr CC BY 2.0
