Abstract
This paper examines the role and power of the state in modernity and its transformation throughout it and into the present. First, it recognizes the centrality of the role of information control for the modern state constitution, which allows sovereign power to extend to the national level. Secondly, it discusses the shift of state power from a purely informational power to an informational and bargaining power, as well as the gradual transformation of sovereignty into governmentality. Finally, it analyzes the transformations that have led to a critical loss of both powers by the state and have enabled their acquisition by tech corporations. It examines the implications of this shift in power and the consequent disempowerment of the state, defining the mode of operation of the power embodied by tech corporations as a regime of performativity, rephrasing the Foucauldian regime of truth, which presided over the ways in which governmental power was performed. Such a regime bases its power not on the ability to order discourse and knowledge, but on the ability to automate it, and to predict and manipulate human behaviors. In this way, it has disintermediated not only the state in its role as the primary informational agent, but also, to some extent, the ability of individuals to assert rights through their actions.
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I did not analyze or generate any datasets, because my work proceeds within a theoretical approach.
Notes
For more on performativity power of language, see Austin (1975).
It is not easy to summarize the origins of sovereign power. I will try to do this using the story of the vase of Soissons, told by Boulainvilliers, which is used by Foucault (1997) to demonstrate the emergence of the rights of the sovereign over those of the warriors and the emerging feudal lords in the Middle Ages. If in 486, at the time of the capture of Soissons, the sovereign's right to the spoils of war is not yet guaranteed, it is precisely because he has not yet succeeded in asserting his authority over his subjects. This episode marks a fundamental crossroads from which the sovereign, who later crushed the head of the soldier who had claimed the spoils and arrogated to himself the right to do so, gradually gains more and more power. This process culminates in the emergence of the modern nation-state, in which all state power is derived from the sovereign who embodies it. Between medieval and modern times attempts have been made to limit the power of the sovereign (its arbitrariness) over that of the subjects. The Magna Charta of 1215 is the first of the successful attempts, but it aims to subordinate the king's will to certain legal rules designed to guarantee the special rights of feudal lords. A universal (i.e., equally distributed to all citizens) limitation of sovereign power does not occur until the 1700s, beginning with the adoption of the Bill of Rights (1689), followed by the French and American declarations of rights: the Déclaration des Droits de l'Homme et du Citoyen (1789) and the U.S. Bill of Rights (1791). These moments also mark the beginning of the introduction of the principle of separation of powers (legislative, judicial, and administrative), the so-called Rule of law, which implicitly underlies the legality principle (according to which all the state’s powers are bound in their action by the law). In any case, vestiges of absolute sovereign power attributed to a single person persist in existing Western legal systems, for example in the power of pardon granted to monarchs or heads of state.
In one of its most original forms, the law takes the form of lex talionis and represents the institutionalization of a particular way of saying, vim-dicere (revenge), that is, the ability to express or show force (Agamben 2008), and thus to inform about it. The problem with the lex talionis is that it represents a way of relativizing a right: that of punishment (ius puniendi), which in the modern state is instead absolute (that is, equally distributable by the state according to similar circumstances) and is one of the various ways in which the ius-dicere is developed. In the modern state, this latter capacity (i.e., the jurisdiction) results from two principles: the justice principle (according to which equal cases must be treated equally) and the legality principle. The sovereign, by absolutizing the distributive principle of punishment (and thus enshrining as his own the right to corrective justice), asserts his jurisdiction of which the ability to vim-dicere is a part. The latter capacity lies not only in the right to punish but also in the right to have the last word, according to the legal maxim res judicata est (the verdict is final).
In the international sphere, in fact, this remains the main characteristic of the state, which other states must recognize as equal on a legal base and therefore cannot interfere in its internal affairs according to the non-intervention principle.
Another later example of this hegemonic cultural power is represented by the so-called Troika within the European Union.
Almost 10 years later, this pun needs to be revised. Today's hyperhistorical world is one in which the word ‘machine’ has become inseparable from the word ‘learning’.
For more on distributive equality, see Hildebrandt (2020a). More generally, since the right to data protection partially overlaps with the right to privacy, it is implicitly protected by human rights declarations and most constitutions, along with a number of other legal goods such as non-discrimination, freedom of expression, freedom of association, presumption of innocence, bodily integrity, the right to vote, and so on. Furthermore, the Charter of Fundamental Rights of the European Union (CFREU) recognizes and protects it as an independent right from privacy, although partial overlapping. Its massive, voluntary disposal (together with the associated difficulty of enforcing regulations on it) is therefore not simply a private matter, but a public one, since it contributes to rendering the role of the state ineffective, to disempowering it. For more on the public nature of privacy, see Hildebrandt (2015).
In this regard Stiegler (2018b) talks about automatic government.
Human-like text automation will determine the intensification of the quantity and quality of human–machine relationships, enabling ADM to an infinite range of applications. In this sense, it can be considered a method of invention and a general-purpose technology because it allows a very wide and indeterminate range of applications. By contrast, autonomous driving cars can be classified as simple general-purpose technologies because they allow for a wide but determinate range of applications. Finally, static coded algorithm tools, represent an invention of a method of invention without being a general-purpose technology. In fact, they have an indeterminate but limited range of applications (see also Cockburn et al. 2018). According to its intrinsic characteristics, it is no coincidence that human-like text automation is one of the main declared strategic goals of the White House (2019) in the AI sector.
Observed data can also be directly recorded in the onlife world without explicit consent. Within the European Union, the GDPR provides five additional legal grounds beyond voluntary consent: contract, legal obligation, vital interest of the data subject, public tasks, and legitimate interest of the data controller. For more on thi,s see Hildebrandt (2015).
For more on data protection and discriminatory practices implemented through processing of data see Hildebrandt (2015).
As defined by Granstrand (2000 p. 13): “A corporate innovation system is the set of actors, activities, resources and institutions and the causal interrelations that are in some sense important for the innovative performance of a corporation or groups of collaborating companies and other actors (e.g., universities, institutes, agencies)”. It is interesting to note how such institutions are exactly the ones that helped to shape the old regime of truth and that are now subjected to the new regime of performativity.
To this end, it is interesting the example given by Kate Crawford in her Atlas of AI regarding the facial recognition system deployed in the streets of Belgrade through the installation of 2000 cameras around the city. To deploy such system: “the Serbian government signed an agreement with Chinese telecommunications giant Huawei to provide the video surveillance, 4G network support, and unified data and command centers. Such deals are common. Local systems are often hybrids, with infrastructure from China, India, the USA, and elsewhere, with porous boundaries, different security protocols, and potential data backdoors”. Another significant example is represented by Amazon Ring, a surveillance camera system sold to private users to monitor their home surroundings that has partnered with hundreds of police departments across USA (Lecher 2019). Significantly, in 2021, Amazon unilaterally changed terms and conditions for local government access to videos (see Seifert 2021, for more). More in general it is possible to say that: “technology companies are taking on state and extra state functions that they are ill-suited to fulfill” (Crawford 2021, p. 208).
To get an idea of the scale and relevance of this phenomenon, consider that as of 2019, Microsoft's patent portfolio included 76,109 patents (Rikap and Lundvall 2021).
The following are some of the statements in the report that summarize the meaning of the recommendations: “Most AI progress in the United States should remain with the private sector and universities. We must not lose an innovation culture that is bottom-up and infused with a garage-startup mentality”; “Congress and the President will have to support the scale of public resources required to achieve it”; “The government must make major new investments in AI R&D” (National Security Commission on Artificial Intelligence 2021). In line with these claims, Biden launched in 2021 a 2 trillion USD infrastructure plan called “The American Job Plan”, which includes 180 billion USD for R&D in AI and biotechnology (Rikap and Lundvall 2021).
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Abbate, F. An analysis of informational power transformations: from modern state to the new regime of performativity. AI & Soc (2023). https://doi.org/10.1007/s00146-023-01815-w
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DOI: https://doi.org/10.1007/s00146-023-01815-w