The Yale Law Journal

March 2020

The Law of Informational Capitalism

Law and TechnologyIntellectual Property

abstract. Over the past several decades, our capacity to technologically process and exchange data and information has expanded dramatically. An early sense of optimism about these developments has given way to widespread pessimism, in the wake of a wave of revelations about the extent of digital tracking and manipulation. Shoshana Zuboff’s book, The Age of Surveillance Capitalism, has been hailed by many as the decisive account of the looming threat of private power in the digital age. While the book offers important insights, Zuboff’s account is too narrow: it fixates on technological threats to our autonomy and obscures the relationship between technology and the problems of monopoly, inequality, and discriminatory hierarchy that threaten our democracy. Zuboff’s book also fails to appreciate the critical role that law plays in the construction and persistence of private power. Julie Cohen’s book, Between Truth and Power: The Legal Constructions of Informational Capitalism, gives us a much better framework to comprehend intensifying forms of private power today and the role that law has played in supporting them. Drawing on Cohen’s insights, I construct an account of the “law of informational capitalism,” with particular attention to the law that undergirds platform power. Once we come to see informational capitalism as contingent upon specific legal choices, we can begin to consider how democratically to reshape it. Though Cohen does not emphasize it, some of the most important legal developments—specifically, developments in the law of takings, commercial speech, and trade—are those that encase private power from democratic revision. Today’s informational capitalism brings a threat not merely to our individual subjectivities but to equality and our ability to self-govern. Questions of data and democracy, not just data and dignity, must be at the core of our concern.

author. Professor of Law, Yale Law School. I thank Yochai Benkler, Marion Fourcade, and David Grewal for their generous and insightful comments.