Modeling sovereignty: towards a legal philosophy for platforms in the People’s Republic of China

Abstract

ABSTRACT The present study is an investigation into one possible feature of one possible future for law in the People’s Republic of China. Its speculations originate from a conceptual analysis of how the law presently relates to and is challenged by computational infrastructures in China, namely platforms. It is therefore a work of legal philosophy and, tentatively, of a legal philosophy for platforms in the PRC. A legal philosophy for platforms is imperative due to the increasing influence of platforms as an organizational form within societies, political economies, and governments. Platform companies in the PRC are increasingly engaged in taking up responsibilities of the state (either unintentionally or via delegation) and the state is adopting platform logics and designs as well. Platforms represent a paradigmatic shift in political economy and law, perforating the lines between public and private, users and citizens, home and work. The result has been a rendering of certain aspects of existing regulatory and administrative frameworks as anachronistic. Updating the legal apparatus is in order, and requires generating a novel analysis of platforms. This paper argues that one feature of this new platform ontology is models. It argues that, in order to make the data and emergent complexity endemic of platforms more intelligible for its users, platforms may use models to represent dynamic and live data to make analysis easier and decision-making faster. This paper concludes that modeling this data creates opportunities for Schmidtian sovereign decision-making, introducing new regulatory issues for the state and the law. In order to make this chasm between platforms and the law clear, this paper first analyzes existing regulatory responses to the platform economy in order to articulate the nascent legal philosophy for platforms in the PRC. This analysis reveals an emergent but inconspicuous approach, one that finds the PRC participating in platform governance and carefully calculating the nature of China’s platformization through a multifaceted ICT-development policy environment. The PRC’s legal philosophy towards platforms can be described as one of co-regulation and one that recognizes and attempts to constrain the sovereign decision-making of platforms. Using Foucauldian and Schmitdian theories of power and sovereignty, as well as phenomenological media theories of contemporary computation, this paper analyzes City Brains, a form of platform-based urban governance aggressively pursued in the PRC, in order to identify when these moments of platform sovereign decision-making might occur. This case study discloses that an under-researched feature of platforms is their modeling capacity, defined here as platforms’ propensity to solve informational complexity problems and reinforce value-generation processes by offering users representational topologies of platform data, sometimes with an interface. The case study reveals that sovereign decision-making occurs in a number of circumstances within models, such as when (1) models create new subjects in the form of aggregating data across human and non-human data into clusters, when (2) models generate new ‘territories’ in the form of databases and digital twins and offer opportunities for platforms to give rise to new juridical concrete orders, and when (3) models’ interfaces and envelopes condition new governmentalities and publics due to their envelope power, that is, their shaping of users’ phenomenological relationship to their urban environment. The City Brain case analysis illustrates what this modeling sovereignty can look like, including the following characteristics: (1) models inevitably compose the world they are tasked with representing. This is because modeling requires abstraction, inclusion, and exclusion of data, (2) modeling sovereignty as a concept offers opportunities for states to innovate new forms of regulation, particularly with respect to the types of data fed into models and the conditions of users’ interfacial interaction with models. As a result, modeling sovereignty can beget value-alignment between states, platforms, and corporations, (3) models are how large groups of actors, perhaps entire societies, are able to sense themselves and analyze themselves. Models are a condition of recursive governance, such as in the case of digital twins, (4) models are not always and simply visual, but are instead tools for platforms to concatenate and synthesize large amounts of live data into dynamic representational topologies. Historically speaking, models are to platforms what prices are to markets. Prices and models are both how complex sets of knowledge become intelligible to their respective organizational form. Models are predicated on significant increases in informational complexity due to big data. Thus, modeling sovereignty is both a question and a regulatory principle. The study concludes with discussions of COVID-19 related constraints and thoughts on future research.