I had an interesting discussions with folks in a “Using the Law for Regeneration” call yesterday. We touched upon legal frameworks needing to shift in response to once in a century technology-induced shifts in the larger system.
In 2022, we are at a point not dissimilar to the late 19th century when the industrial revolution was profoundly changing how people lived, worked, and thought. We are only starting to realise that digital technologies have created an unprecedented universe which we inhabit but are only starting to fathom. Unprecedented is the keyword. In many ways, we still hold attitudes and beliefs coherent with the pre Web 2.0 and pre data economy world. Our legal frameworks are also lagging and playing a “blindfolded in a forest” catch up game. Legal frameworks are not neutral. Like all systems within a system, they are cultural artefacts. They carry with them the ideological assumptions and beliefs of the age and place they emerge from.
I came across the following article which illustrates the conundrum and raises questions around privacy. However, more importantly, in the larger scheme of things, this article is really about what it means to be an individual in the digital 21st century. To summarise the article (who has time to read one more article or watch one more video? 🙃), a US federal appeals court ruled against LinkedIn in favour of data analytics firm hiQ allowing hiQ to keep scraping data off LinkedIn. The court discounted the argument that “LinkedIn users have an expectation of privacy in a public profile”, and concluded that this was justified because the survival of hiQ business was threatened. In other words, the US court concluded that business survival trumps privacy.
In the article “What Economists Get Wrong About Climate Change”, Steve Keen argues that many economists get climate change wrong because they have a reductionist view of climate, mistaking it with weather temperatures instead of seeing the intricate interconnection between natural phenomena, life and economic activity. According to Keen, some even argue that the impact on climate change on the economy will be minor because most of the economic activity takes place indoors. As the saying goes, “when a finger points to the moon, which do you look at?”
Similarly, the conclusion of the ninth circuit court ignores the larger picture. By endorsing data scraping, an extractive activity par excellence, it gives legal teeth to the extractive aspect of the online universe. The concept of an unalienable individual is the building block of the liberal order. In the “real” world, it is a scaffold for legal frameworks (at least in some countries). The building block of the data economy is data. In datafied worlds, law is not law, code is law (the title of an article by legal scholar Lawrence Lessig in 2000).
There is a gap that legal frameworks in different countries are only starting to fill with more or less success. These initiatives clearly show two things: 1. much of the debate is in fact a debate on values, and 2. it crazy complex! 🙃 because when prescriptive regulation or softer incentives are set up, they end up affecting the whole system. It seems to me that, as regenerative thinkers and practitioners, this is an important topic that needs to be considered.