The Biopolitical Public Domain: The Legal Construction of the Surveillance Economy

Abstract

Within the political economy of informational capitalism, commercial surveillance practices are tools for resource extraction. That process requires an enabling legal construct, which this essay identifies and explores. Contemporary practices of personal information processing constitute a new type of public domain — a repository of raw materials that are there for the taking and that are framed as inputs to particular types of productive activity. The raw materials consist of information identifying or relating to people, and the public domain of personal information is biopolitical — rather than, say, personal or informational — because the productive activities that it frames as desirable are activities that involve the description, processing, and management of populations, with consequences that are productive, distributive, and epistemological. As a legal construct, the biopolitical public domain shapes practices of appropriation and use of personal information in two complementary and interrelated ways. First, it constitutes personal information as available and potentially valuable: as a pool of materials that may be freely appropriated as inputs to economic production. That framing supports the reorganization of sociotechnical activity in ways directed toward extraction and appropriation. Second, the biopolitical public domain constitutes the personal information harvested within networked information environments as raw. That framing creates the backdrop for culturally-situated techniques of knowledge production and for the logic that designates those techniques as sites of legal privilege.