The Neutralization of Harmony: the Problem of Technological Neutrality, East and West

Technological neutrality in law is, roughly, the idea that law should not pick technological winners and losers, that law should neither help nor hinder particular types of technological artifacts. This paper examines the idea of technological neutrality for both its internal coherence and its relationship with the dominant politico-philosophical traditions of our time—the liberal and the Confucian. In doing so, the paper points at how liberalism itself has been transformed in contemporary societies, the role that information and communication technologies play in this transformation and shows how technological neutrality threatens at the same time the developments of contemporary liberalism and liberalism’s reconciliation with the Confucian system of values upon which technological neutrality, through the system of international trade, presently seeks to impinge. The paper invites us to question technological neutrality through its relations with political neutrality, a doctrine that has lost significant grounds in contemporary liberal philosophy post-communitarian critique and which is fundamentally opposed to the ethicopolitical traditions of Chinese societies. On an applied level, the paper invites us to abandon ideas of neutrality in technology law and politics in general and, in particular, provides a hopefully compelling argument for China to resist attempts to neutralize its value-system and nation-building project through the system of international trade. * Research Assistant Professor and Deputy Director of the LLM in Information Technology and Intellectual Property Law at the Faculty of Law, The University of Hong Kong. THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. B.U. J. SCI. & TECH. L. [Vol. 18: ABSTRACT ........................................................................................................... I. REWIRING NEUTRALITY .............................................................................. II. VAGUENESS, TECHNOLOGY, AND POLITICS ........................................ III. A MORE PERFECT UNION—OR THE VALUE OF SHÙ .......................... IV. THE NEUTRALIZATION OF HARMONY: CONCLUSION ................................................................................................................................ I. REWIRING NEUTRALITY .............................................................................. II. VAGUENESS, TECHNOLOGY, AND POLITICS ........................................ III. A MORE PERFECT UNION—OR THE VALUE OF SHÙ .......................... IV. THE NEUTRALIZATION OF HARMONY: CONCLUSION ...................... “But there was a stillness about Ralph as he sat that marked him out: there was his size, and attractive appearance; and most obscurely, yet most powerfully, there was the conch. The being that had blown that, had sat waiting for them on the platform with the delicate thing balanced on his knees, was set apart. ‘Him with the shell.’ ‘Ralph! Ralph!’ ‘Let him be chief with the trumpet-thing.’”1 “Scientists, artists, look with the eye of genius at the present state of the human mind; you will see that the sceptre of public opinion has fallen into your hand; grasp it with vigour!” 2 “‘[N]o more honours for the Alexanders; long live the Archimedes’. . .”3 I. REWIRING NEUTRALITY There is much that the information environment can teach us about liberalism and its core tenets in the 21st century. In the lines that follow, we will focus on one of the central elements of 20th century liberal political theory—the doctrine of political neutrality—that has now been recast in dimensions perhaps unprecedented in the history of political ideas. The way it has been so recast stems from a market-oriented ideology that is founded as much on a shrunk-pragmatic4 understanding of the political as on an approach to the technological that mirrors such understanding. While the first foundation 1 WILLIAM GOLDING, LORD OF THE FLIES 22 (1962). 2 CLAUDE HENRI DE ROUVROY, COMTE DE SAINT-SIMON, LETTERS FROM AN INHABITANT OF GENEVA TO HIS CONTEMPORARIES (1803), reprinted in THE POLITICAL THOUGHT OF SAINT-SIMON 72 (Ghita Ionescu ed., Valence Ionescu trans., 1976). 3 Saint-Simon, quoted in GEOFFREY HAWTHORN, ENLIGHTENMENT AND DESPAIR: A HISTORY OF SOCIAL THEORY 69 (2d ed. 1987). 4 ROBERTO MANGABEIRA UNGER, THE SELF AWAKENED: PRAGMATISM UNBOUND 1 (2007) (“Pragmatism has become the philosophy of the age by shrinking. . . . [W]e have lost confidence in large projects, whether of theory or of politics, we have been taught how to live without them rather than how to recover and remake them in other, more promising forms.”). THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. 2012] THE NEUTRALIZATION OF HARMONY is certainly not distinctive of 21st century neutrality, the second is its cornerstone. This technological semblance has enabled the doctrine of political neutrality to reach entirely new dimensions in contemporary Western societies—dimensions which now attempt to impinge upon the value systems of the East. The technological, in a new configuration,5 has become the central domain of thought of the 21st century. In the West, it is the domain in which the political finds refuge—in which decisions on good and evil, friend and enemy, are conveniently evaded, seeming to reflect the ultimate realization of a way of thinking already noted by Carl Schmitt in 1929: “The evidence of the widespread contemporary belief in technology is based only on the proposition that the absolute and ultimate neutral ground has been found in technology, since apparently there is nothing more neutral. Technology serves everyone, just as radio is utilized for news of all kinds or as the postal service delivers packages regardless of their contents, since its technology can provide no criterion for evaluating them. Unlike theological, metaphysical, moral, and even economic questions, which are forever debatable, purely technical problems have something refreshingly factual about them. They are easy to solve, and it is easily understandable why there is a tendency to take refuge in technicity from the inextricable problems of all other domains.”6 Political skepticism now walks pari passu with, if it does not ensue from, the fascination of society with the technological.7 As the technological 5 That the technological has become the central domain of thought of our age could be seen as the outcome of a long historical process rather than a matter of sheer revolution. Carl Schmitt eloquently depicts such a process, in which what may at first appear as a mere quantitative unfolding turns into a qualitative shift. See CARL SCHMITT, The Age of Neutralizations and Depoliticizations (Matthias Konzen & John P. McCormick trans.), in THE CONCEPT OF THE POLITICAL 80 (George Schwab trans., Chicago University Press Expanded ed. 2007). Human evolution, however, has always involved our attempt to master the world through the use of technological artifacts. In this view, which is the one I adopt in this article, what characterizes our time is not only the centrality of the technological but a paradigmatically new configuration of it. 6 Id. at 90-91. 7 A series of surveys conducted by the Oxford Internet Institute, University of Oxford has shown that levels of trust of society in Internet-related technological actors are THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. B.U. J. SCI. & TECH. L. [Vol. 18: pervades all dimensions of life in society so does the expectation of state restraint with regard to the technological. A principle that commands so, the principle of technological neutrality, has become the touchstone of Western law and policy making in the information age, elevating neutrality to heights it had never reached before. Now, through the “Silk Roads” of international trade8 and the planetary avenues of international human rights, neutrality attempts to force itself into political traditions where restraint, even if exercised in the ethical life, has never led to the insulation of the political from the ethical—nor of the technological from either. Having been invoked before in a number of contexts, in 2004 the principle of technological neutrality transcended its prior contextual references and was exported to the world stage as a cross-cutting ideal of technology law and politics. It was so as the General Assembly of the United Nations endorsed the Geneva Declaration of Principles,9 approved in the Geneva Round of the World Summit of the Information society. In the Geneva Declaration, participants from 175 countries around the world10 firmed their understanding that “[t]he rule of law, accompanied by a supportive, transparent, procompetitive, technologically neutral and predictable policy and regulatory framework reflecting national realities, is essential for building a peoplesignificantly higher (39%) than those of trust in newspapers (28%) and other major corporations (30%), and almost twice as high as those of trust in the Government (20%). An ascendant trend with regard to trust in Internet-related actors has been consistent throughout the last 7 years. Grant Blank, Trust on the Internet Now Exceeds Trust in Other Major Institutions, OXIS: OXFORD INTERNET SURVEYS BLOG (Oct. 25, 2010), http://goo.gl/6VhWW. See also William H. Dutton, Ellen J. Helsper & Monica M. Gerber, The Internet in Britain: 2009, OXFORD INTERNET INSTITUTE, UNIVERSITY OF OXFORD 32 (2009) (U.K.), http://goo.gl/FvoeR. 8 See Anupam Chander, Trade 2.0, 34 YALE J. INT’L L. 281 (2009) (welcoming the idea of technological neutrality in trade in what he calls the “electronic Silk Road”). See infra note 150 and accompanying text. 9 G.A. Res. 59/220, ¶ 4, U.N. Doc. A/RES/59/220 (Dec. 22, 2004) (“The General Assembly . . . endorses the Declaration of Principles and the Plan of Action adopted by the Summit on 12 December 2003.”). 10 First Phase, Geneva: The Summit, WORLD SUMMIT ON THE INFORMATION SOCIETY (Mar. 31, 2009), http://www.itu.int/wsis/geneva/index.html (“At the Geneva Phase of WSIS nearly 50 Heads of state/government and Vice-Presidents, 82 Ministers, and 26 ViceMinisters and Heads of delegation as well as high-level representatives from international organizations, private sector, and civil society provided political support to the WSIS Declaration of Principles and Plan of Action that were adopted on 12 December 2003. More than 11,000 participants from 175 countries attended the Summit and related events.”). THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. 2012] THE NEUTRALIZATION OF HARMONY centred Information Society.”11 The meaning of technological neutrality is far from clear. Ultimately, there is no sense in which such a principle holds good—and thus it is only nominally that I refer to it throughout this article as a principle. None the less, amongst possible formulations,12 that which would cast technological neutrality under the best light would go like this: P: Law should neither help nor hinder a particular type of technology; P1: as a necessary condition of P, law should be framed in terms of functions and values, not of technology itself. P, which I will call the non-discrimination principle, is the general proposition of technological neutrality. It is in this or other very similar enunciations that the principle of technological neutrality appears in the vast majority of law and policy instruments that affirm it. However, because it is unclear how law can achieve the non-discrimination ideal, a second proposition P1 is needed. This second proposition, which I will call the vagueness principle, directs the law to higher degrees of abstraction with regard to technological artifacts involved in social relations the law regulates. In short, the vagueness principle commands law not to describe the specificities of technological artifacts. There is no academic nit-picking in focusing on explaining and confronting these propositions, nor are these extraneous, localized problems of technologyrelated stuff. Rather, I believe, they are the central regulatory concerns of our time. Not that they deserve this standing, for they have won it furtively while we were all asleep at the ever-receding banks of our political consciousness. Yet, there they are, sailing in their steep contradictions, challenging the overall projects of any form of virtue-oriented politics one can conceive of—West and East. As the technological becomes the central domain of thought of our time, as law and politics threaten to defer to the technological on the guise of not discriminating it, the normative order loses the opportunity of translating the technological with humanizing lenses. And by excluding such an increasingly 11 World Summit on the Information Society, Geneva Declaration of Principles, ¶ 39, Doc. WSIS-03/GENEVA/DOC/4-E (Dec. 12, 2003) (emphasis added), available at http://www.itu.int/wsis/docs/geneva/official/dop.html. 12 I enlarge on these formulations in Part II infra. THIS VERSION DOES NOT CONTAIN PARAGRAPH/PAGE REFERENCES. PLEASE CONSULT THE PRINT OR ONLINE DATABASE VERSIONS FOR PROPER CITATION INFORMATION. B.U. J. SCI. & TECH. L. [Vol. 18: important dimension of our personal realities, law ceases being, as it has been said to be, something “used by people to understand themselves.”13 It is thus essential that jurisprudence and political theory take the reins of this process that has so far happened largely in their spite—and which is widely incompatible with much of their contemporary orientations. In the pages that follow, I will offer a modest, initial contribution on the problem of technological neutrality that points in such a direction. I start in Part II with a rough discussion of the descriptive contours of the vagueness principle and an evaluation of its specific normative shortcomings. Here my focus will be on the internal incoherence of technological neutrality. I will question whether technological neutrality, in its more specific proposition, the vagueness principle, can pull itself together as an idea that makes any modicum of sense. In Part III, I will broaden the discussions on technological neutrality towards an external, more interesting perspective. I will focus on the overall problem of trying to reconcile technological neutrality with both contemporary liberal politics and the philosophical foundations of Confucian-oriented societies on which the principle of technological neutrality presently seeks to impinge. I will explain why such an attempt fails. While technological neutrality reflects a 21st century version of neutralist liberal theory, such is a version fundamentally incompatible with any form of society we now live in—if it has ever been compatible with any other. Part IV concludes. II. VAGUENESS, TECHNOLOGY, AND POLITICS A number of reasons support the vagueness principle. One is the intent to future-proof the law against the normative perturbations brought about by technological change. The mobility of technological artifacts across everunfolding sets of categories raises a permanent threat of disconnection14 between the institutions of law and the normative reality that law seeks to stabilize.15 Vagueness thus responds with the pretence that by moving towards 13 JOSEPH RAZ, ETHICS AND THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 237 (1994) (“‘[T]he law’ is a concept used by people to understand themselves. We are not free to pick on any fruitful concepts. It is a major task of legal theory to advance our understanding of society by helping us understand how people understand