Julie Cohen’s dazzling tour de force Between Truth and Power asks us to consider the new ways powerful actors extract valuable resources for gain and dominance. Cohen in particular warns that “the universe of personal data as a commons [is] ripe for exploitation.” Cohen writes that “if protections against discrimination, fraud, manipulation, and election interference are to be preserved in the era of infoglut, regulators will need to engage more directly with practices of data-driven, algorithmic intermediation and their uses and abuses.” I read Between Truth and Power as not only a compelling account of the contemporary transformations of law and technology but also a call to action. This Essay takes up Cohen’s challenge by considering ways in which governments can engage in new forms of governance to leverage the very same biopolitical data extracted by private actors for profit purposes in service of public goals of fairness, equality, and distributive justice. In particular, the Essay describes several current contexts that demonstrate how datafication can, and indeed should, be employed to aid regulatory research, enforcement, and accountability. The three examples I focus on are: first, current developments in labor market information flows that are attempting to address salary inequities, labor market concentration, and bias; second, the technique of scraping data off platforms in service of regulatory compliance; third, the issue of monitoring and tracking viral spread during a global pandemic. I argue that if we are to take Cohen’s framework seriously, then policymakers have no choice but to identify opportunities within disruptive technological changes and to mirror, rather than attempt to block, these innovations.
Biopolitical Opportunities: Between Datafication and Governance,
Notre Dame L. Rev. Reflection
Available at: https://scholarship.law.nd.edu/ndlr_online/vol96/iss4/3