Law & Critique: Technology elsewhere, (yet) phantasmically present

An image of a computer showing a kernel panic. A kernel panic results from a software bug or hardware failure from which the computer cannot recover and thus comes to a complete stop in order to prevent further damage or data loss.

While in some corners it has been argued that “post-modernism” (in these tellings, usually a metonymy for any theory that questions authority, the stability of meaning and the normalization of various forms of sovereignty and their violence) bears a certain level of responsibility for the supposed rise of “post-truth” politics, for us the situation is directly the inverse. The problems that are being discovered today under the various monikers of crises of truth, institutions, ruleof law, etc. are in fact the generalised perception of the long-term impossibility of securing and regulating text that well predates the contemporary technological milieu. “New” contemporary technologies are not all that new.[1] The computer page for example “remains a screen” belonging to a “digital history” of devices and handheld devices, like “pen tools” that process words or print words with voices and with words.[2] Thus, for us, it is these varied traditions and texts that perceived this instability and insecurity prior to 2016 that offer deep and critical means to think this contemporary situation.

Consequently, a key part of our discussion is concerned about giving more attention to text in all its discontinuous iterations (i.e., as image as sound as picture as code as meme as protocol) and its dissemination, dispersal, potency, synchrony and disruptions of space as opposed to the monologic sovereignty and superiority of privacy. For us, text is fundamentally insecure. Its very being in material outside of its author’s control means it is inevitably untethered, exposed to corruption, dissimulation and collapse.And thus, all inscriptions, that is any form of marking, from memes, to the law, to computation, are textual and thus vulnerable.

In this light we are interested in exploring the relationship between textual based monitoring (e.g. automatic filtering and targeting based on language on social media) and calls for increased digital privacy. The relations between technology and privacy and their symbolic and ethical effects thus merit a brief interrogation here. To be clear, we are not renouncing the importance of privacy. Rather, we are attempting to unpack some of its problematics that we feel privilege a decontaminated or secure monolithic economical-political imaginary that disavows the textual relations of heterogeneity and plurivocality that technology engenders.

Privacy as design (or privacy in-built) can be thought of as a socio-political and legal norm in western modern society. It is what has ensured that the white western subject has recourse to ipse, autonomy, propriety, voting rights and property. It territorialises a spatial collective continuity (and creates a specular other) that reifies sovereignty and supremacy. Privacy is not primarily then the right to one’s secrecy but rather the right to sovereign(and often violent) control over one’s private domain. Privacy is the state’s promise that each citizen (as it is often limited only to the citizen ‘in good standing’ with the state) shall rule in the spaces of private ownership.

That is to say, the aesthetics of privacy pull individuals together under a common spatial frame of the nation state. Individual and state become one, united under the state’s liberal-utilitarian legal-juridical police calculus of violence, war and terror. Privacy is thus an insistence that principal “threats” occur against collective individual autonomy under a state’s sovereign autonomy (and in this case the state’s autonomy is also aligned to and inseparable from corporate transmissions of digital-power and digital-autonomy) rather than in a more complex fluid de-sovereigntised incommensurable schema of relation. (We return to this later…)

All this regulation is “pro-privacy”, in the sense that it creates autochthonous zones of “presence- to-self” that are circumscribed by the rubrics of public order, assimilation and hierarchy. Such spatiality is an imagination of the colonial. It is dominantly geographic.[3]Such spatiality understands, reifies, maintains and regulates borders and (yet retreats from) contamination. It polices who gets to move in certain places. It affixes itself to and cauterizes/epidermises the body of the other creating fungible economic attachments as well as racialised security/property.[4]

We cannot disentangle the exceptional and normal instruments of colonial modernity and their emphasis on the private andthe right to own speech from the right to own, harm, study, surveil and exploit an other. This other encapsulates not only the “human” (anthropos) but also non-human and exemplifies the ways through which western knowledgeseeks to “capture”/ “calculate”/“programme” and reify selfhood/ “human” hood. This use of privacy as a default for spatiality is not essentially a new technological design. It retreats-recoils and has been retreating-returning- recoiling for most of liberal western modernity. It plays a spectral-structural role in the biopolitical ordering of the plantation, the colony, the concentration camp and the penitentiary.[5]

Text/speech remains as taken for granted, but still ghosts that haunt the structure of containment, regulation and calculability within techne. The phantasy of privacy is founded on the belief that text and speech are fundamentally controllable. The state’s distribution of privacy rights functions as a tacit agreement wherein the subject of the law is granted certain illusorily direction and control over their speech and texts. In Derridean terms, privacy is the denegation of dissemination. In this way, privacy is merely the inverse, or more accurately the distribution of state secrets and of the unbearable. And so, any attempt to dissociate privacy and the unbearable and secret violence of the state at any philosophical level is bound for failure.

The contemporary isomorphy of privacy with data and indeed data protection suggests that privacy as a kind of techno-political design is always already enmeshed within an economy of difference. Thus, text/speech always invades and exposes the subjectivity of the private, insurgently through an extraneous cross-textual exteriority and inter-subjectivity. It disperses and undermines the private and the sovereign (insurgently), from within.

Put differently text/speech innately extends, suspends, alters & disrupts “privacy” –– the sovereignty (and arrest) of privacy. It de-sovereignises privacy though an escape of spatiality and containment. In this sense, text/speech is always the being of the other, it is a denegation of the private in the sense that it demands the private to express itself, define itself, modify, fragment and extend itself in relation through establishing a transference to the other as well as all of the other’s doubled/multiplied/directionless spatio-temporal entanglements.

Thus, the motif of text as logos and as an iterable substructure of all forms of modern technology and indeed Artificial intelligence (a tautology, for all “intelligence” is artificial and thus obsolete) is important as it underscores the limits of regulation. It seems to suggest that regulation is an attempt to reify, assimilate, displace, annihilate and standardize/unify other kinds of non-human knowledge under a monolithic/rational/totalised post-enlightenment “human” knowledge. In doing this however, the “overrepresented” idea of the anthropocentric “human”[6] is deployed and we re-enact an ineluctable dialectic seesaw or circle/cycle wherein western knowledge continues to rationalize, programme, master and capture the non-human other through its logocentric overrepresentation of the “human”. This is a conceptual “presencing” of “human”-centric temporality/privacy that only leads to an autoimmune collapse in the long run where “solutions” parasitically turn against themselves and their very systematic metaphysical and juridico-legal structure.

And so, to ignore the consideration technological texts are embedded within, an iterable dispersal or disseminatory ecology of writing and communication or a network of texts code protocol, would be a disavowal of alterity that would ignore the inescapable, which as Derrida warns, is phantomatically unbounded –– out of joint.It “begins by coming back”.[7] Interestingly this phantomatic spectrality is the very condition and effect of machines and non-human logos which is to say artificial intelligence depends not on performance in “human” terms but rather on its indeterminate ability to always already interrupt “human” texts through contrapuntally composing ongoing intertextual (and hence technological) structures.

A consideration of the intertextual disseminatory nature of code, algorithms and technology in general is thus indispensable. It can help us to identify some of the “spectral leaks” and challenges of technology i.e., the fact that technological knowledge, as text/logoi is always non-statist, always already decentred, open, proliferative, viral, transverse and transitive, –– in the break. It helps us understand why and how technology remains a destinerrant open haunted door that neither governments nor gatekeepers nor we the end-users can see through with clarity. A pursuit of technology ethics that does not attend to questions of heterogeneity beyond the “human” impulse to “render the indeterminate determinate”[8] is thus devoid of an ecological attentiveness, attunement or capacity to be open to the indeterminability other (i.e., to knowledges of the other). This is a recurrent stuckness that is self-immobilising.

It is thus imperative to theorize technology and legal attempts to constrain it by accepting the necessarily anti-sovereign syntax of text and speech, its inability to be held in private as well as its fugitivity. This is an important exercise because it raises ethical-legal and juridical questions concerning what it means to live with, in, and amongst the atemporal, the unprogrammable, the out-of-joint i.e., the phantasmic.

So. How can we learn to live with hyper-fluid duplicated “deep-faked” texts that already recur auto-trolling us and troubling our temporal-spatial, sovereign defenses? How can we learn to live and relate with texts that occur at a speed, gravity and reach that engender rapid cycles of interpretation, feedback and response between networks of “human” and non-human in an ungraspable phantasmic register? How can we learn to live with the precarity of texts that bounce back, “attack” or return (like the Gatwick drones whose very existence in the material sense is still in question, while their existence in effect is undisputable) which autonomously re-localise and suspend the synchronic, and diachronic remote militaristic terror of conquest of western private/sovereign/imperial techne?

What can such auto-phantasmic slippages –– “glitches”, “crashes”, “false positives”, “bleeps” and “leaks” –– teach us? What ethical demands arise when there is a technological faltering/ “outage” (in this age of “human progress”), when “something is technically wrong”, when we are arrested by a not found 404 error message or a kernel panic? Or, when language slips beyond control, when its interiority and its secret exist within and through it rather than from the sovereign assignation of a fraction of sovereignty?

We want to suggest that these failures synecdochically point to an “end” (i.e., a self-disintegration) of calculable/programmable “human” logos/knowledge, –– a “human” knowledge that wants to remain white, patriarchal, classed, eurocentric and bio-logic; an end to that short adventure that, as Derrida says, “has associated technics and logocentric metaphysics for nearly three millennia”.[9] In this sense these technologies suggest an ethical untenability as exemplified through an entrenched privileging of the “human”. Perhaps in this regard they are reminders that other knowledges exist in an intertextual ecology that we are fragilely exposed to, permeated by and can never have any grasp over. Which is to say, it seemsto us that these technologies exigently demand for an ethics of surrender, risk/ chance that is guided by an open capacity to care for/ with and against the unknowable-knowledge/intelligence/logoi of others beyond the knowability of the “human”.

This call, a spectral “polyphonic affectivity”,[10] as Moten might say, is necessitated through (and structured by) the constant non-closure/excess of automated rupture as transmitted through spontaneity, porosity, diffusion, relation, transition, oscillation, friction, abrasion, virtuality, flexibility, free-play and so forth,[11](in what Derrida calls the “principle of ruins”)[12] that continually works sovereignty over. In other words, there is a constant tendency towards crisis, which appears to call for a reassertion of sovereignty (with technology) and we see it in the increased calls for regulation, control and privacy. Yet against this, or perhaps through and with it (but in a different register), there is always a specularised “absence of ruins”[13] also, an imperceptible porosity and dispersal of technologies (a call to ghosts, or to the spectral) that indelibly requires an impossible responsiveness, (responsabilité)[14] to the wholly other, (an improvisational-interpretational flexibility and “attentiveness’”)[15] that can only be measured in an offbeat “inability to read and attune to their call”.[16]

This specularised recursive techno-hermeneutic call to ghosts, – a call to relate to the undecidable ecology of dispersal and its demands – is what we need to pay attention to. To heed this call is to be exposed to certain textual-epistemic-hermeneutic demands (of justice) that require our responsiveness in their multiplicity during all processes of reading comprehensively i.e., from design, to policy, to ethics and everyday regulation. Until we dare to imagine and re-articulate this “network-space” of radical relationality, the unheimlich ghosts of text, AI and computer code will always return to haunt us (insistently), without closure. This returning other is already here and irreducibly so; it is the other as non-human, as self-processor, or as human-machine-programme-software-hardware synchrony also. This other is always already “incomplete”[17], “infinitely finite”, elsewhere yet phantasmically present (Nancy) always incommensurably questioning, nagging, multiplying, reducing and playing with entrenched ways of being-“human”’-in-the-world.[18]

Now that this being in the world is over, now that this idea of the “human” is being contested, shaken up and challenged, the pressing question is whether or not we can find in us a non-deterministic proximal phrasing of reflection beyond constrictive liberal-utilitarian epistemes of conquest, knowledge-making and capturability that will embrace a radical relationality[19] with the digital-inter-textual-atmospheric-here, now and to come.

 

The present blog piece is in response to my paper in Law and Critique ‘On the Undecidability of Legal and Technological Regulation’ (available here). Rather than writing this alone I decided to write it with Justin Joque (in relation) as I felt that my work draws from and repeats much of his thought in Deconstruction Machines: Writing in the Age of Cyberwar. And so, together in this piece we are concerned with exploring some of the overlapping themes that appear in our work. We touch on aspects such as the monolithic nature of regulation and privacy and address questions arising from the article concerning regulation and risk that continue to permeate contemporary ethical-legal discussions.

 

[1]Joque, J. (2018). Deconstruction machines: writing in the age of cyberwar .U of Minnesota Press.

[2]Derrida, J. (2005). Paper machine. Stanford, California: Stanford University Press

[3]McKittrick, K. (2006). Demonic grounds: Black women and the cartographies of struggle. U of Minnesota Press.

[4]Browne, S. (2012). Race and surveillance. Handbook on Surveillance Studies. New York: Routledge, 72-79 and Weheliye, A. G. (2014). Habeas viscus: Racializing assemblages, biopolitics, and black feminist theories of the human. Duke University Press.

[5]Browne, S. (2015). Dark matters: On the surveillance of blackness. Duke University Press.  See also ibid Weheliye.

[6]Wynter, S. (2003). Unsettling the coloniality of being/power/truth/freedom: Towards the human, after man, its overrepresentation—An argument. CR: The new centennial review, 3(3), 257-337.

[7]Derrida, J. (1994). Specters of Marx, New York: Routledge. p.10

[8]Malabou, C. (2019). Morphing intelligence: from IQ measurement to artificial brains. Columbia University Press. p.103

[9]Derrida, J. (1998). Of Grammatology, 8.

[10]Moten, F. (2003). Black mo’nin’ in Loss: The politics of mourning, 59-76.

[11]Nancy, J.L. (2007). The creation of the world, or, globalization. Albany: Suny Press. p.110

[12]Derrida, J. (2005). Rogues: Two essays on reason. Stanford University Press.p.154

[13]Patterson, O. (1967). An absence of ruins. Hutchinson.

[14]Derrida, J. (1995) The gift of death, and literature in secret. Chicago: University of Chicago Press.

[15]Ramshaw, S. (2013). Justice as improvisation: The law of the extempore. Abingdon: Routledge.

[16]Moten, F. (2003). In the break: The aesthetics of the black radical tradition. Minnesota: University of Minnesota Press p.64

[17]Nyamnjoh, F. B. (2017). Incompleteness: Frontier Africa and the currency of conviviality. Journal of Asian and African Studies, 52(3), 253-270.

[18]Malabou, C. (2019). Morphing intelligence: from IQ measurement to artificial brains. Columbia University Press p.150

[19]Glissant, É. (1997). Poetics of relation. University of Michigan Press.

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