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.
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