The European Union is widely perceived and presents itself as the global vanguard in the struggle to regulate digital corporations. The Union’s regulatory schemes, especially the Digital Services Act, are widely hailed as the continent’s – and from the EU’s perspective, the world’s – best shot at taming digital capitalism. The EU designed many of those measures to become a ‘global standard’. Yet, drawing from organization theory and a legal realist analysis of several of the key provisions of the DSA and their potential implementation, I claim that crucial parts of Europe’s reforms will not become a global normative standard – or, if they do, in ways fundamentally different to what many would expect. That is for two reasons. First, while the DSA does establish a few concise and objective substantive standards, it also grants extensive discretion to private organizations. Second, if private actors will, as we must assume, exercise this discretion in an autonomous (some might say self-serving manner), many publicly acclaimed provisions of Europe’s digital governance reforms may yield globalized private ordering carrying the legitimizing label of EU supervision. Consequently, some current European reforms may stabilize rather than constrain private power and diffuse, if at all, only European ceremonies and labels but not necessarily the full substance of EU law.
From In(-)formation to Infrastructural Turns: The Digital Futures of Human Rights Law and Practice
In his book, The Informational Logic of Human Rights: Network Imaginaries in the Cybernetic Age, Joshua Bowsher critiques the human rights movement’s preoccupation with informational practices. Tracing the evolution of informational preoccupation of human rights organizations to the rise of cybernetics and its enmeshment with the neoliberal project, Bowsher argues that the resulting practice of creating violations as events through capturing, cutting and noise elimination has defanged and depoliticized rights. The quest for objective, stable and predictable knowledge has permeated even the turn to algorithms and machine learning. While denouncing the human rights movement’s resistance to critical and political forms of knowledge making that interrogate subjects, norms, values and power relations, Bowsher nonetheless sees potential for salvaging the promise of human rights. What is needed, Bowsher argues, is a reconfguration of human rights information from an assemblage of ‘brute facts’ into positional, situated knowledge-making practice that would aim to forge connections between structures of oppression and domination and sufferings of ‘particularly situated human beings’. Picking up on Bowsher’s call for human rights in(-)formation, this review essay examines the infrastructural turn needed to effectuate knowledge-generating practices attuned to the polyvalency of the situated perspectives. Focusing particularly on the growing role of digital data and infrastructures, the essay seeks to illuminate promising paths forward for human rights advocates and practitioners.
Datafication, Power, and Publics in India's National Digital Health Ecosystem
While evident for a long time, the COVID-19 pandemic starkly illustrated the need to strengthen India’s public healthcare system. But since 2017, the solution to India’s public health woes takes the shape of the National Digital Health Ecosystem (NDHE) – a digital system for the generation, use, and ‘frictionless’ circulation of health data across healthcare actors through the use of artefacts such as health IDs, electronic health records, data standards, and federated computing architectures. These artefacts are not neutral technological systems. Rather, together with social practices, they constitute a “data infrastructure”. Seeing the NDHE as a data infrastructure allows us to visibilise the regulatory effects of the NDHE, i.e., the ways in which the NDHE creates “communities of the affected” whose access to public health is now mediated by affordances granted by the NDHE. This, in turn, shapes law and regulation of the NDHE, where legal frameworks for (health) data protection are not weakened by accident, but weakened by design. At the same time, the regulatory effects of the NDHE can and should be regulated by law, by channeling law’s commitment to the creation of healthy public spheres to ensure the vitality of a democracy. Accordingly, this paper makes three contributions – one, it provides a brief overview of the political economy and the regulatory effects of the NDHE; two, it analyses the ways in which the regulatory effects of the NDHE shape legal frameworks for health data to disempower individuals and communities who are the generators of this data; and three, it outlines research and policy suggestions for how the law can intervene in limiting the exclusionary data-politics of the NDHE.
This paper originated in the seminar Global Data Law II: Ordering and Power. It will be published by the National Law School of India University’s Socio-Legal Review, Vol 20, Issue 1 (2024).
