Through a series of late-19th century Supreme Court rulings, U.S. corporations have been granted many of the same legal protections, rights, and responsibilities of individual citizens-in effect, "corporate personhood." As debates over the fairness of this interpretation continue even today, Sandra Braman has identified new entities gradually gaining similar status in American society: information and communication technologies and technological systems.
Sandra Braman
In the latest project in her more than 20 years of research on the policy implications of information technologies, Braman has coined the phrase "posthuman law" to describe the development of law to serve machines rather than people, and use of computers to make policy or apply it to humans.
"It has been an unspoken assumption that the law is made by humans for humans," Braman writes in an article published First Monday: Peer-Reviewed Journal on the Internet. "That assumption no longer holds: The subject of information policy increasingly flows between machines; 'machinic' rather than social values play ever-more important roles in decision-making."
In the article (re-published in Global Currents, a 2004 book edited by UWM professors Tasha Oren and Patrice Petro), Braman describes "policies that appear to be justified for social or economic reasons but that are so oriented around technological issues that they have the effect of permitting the 'needs' of technological systems to dominate decision-making for the social world." As an example, she offers regulations governing the content of cable television. The argument that preemption of federal law over state law was necessary for the growth of the national cable system was upheld by the Supreme Court, Braman writes, "as if the rights of the network itself were specified in the Constitution."
Given that the Supreme Court has also considered granting legal rights to vital natural resources such as forests, Braman argues, there is legal precedent for consideration of the legal "rights" of technologies on which humans have similarly come to depend.
Computerized decision-making has infiltrated policy-making processes in three ways, Braman says. Computers supplement human decision-making when they assist humans in decision-making tasks, such as assigning frequencies for broadcast or communication services. They supplant human decision-making when decisions appear to be human but in fact are made by machines, such as profiling-an important way in which the U.S. government identifies citizens as targets of surveillance. "This statistical portrait replaces the legal judgment of individuals with the responsibility of examining the facts of a case in the same way that statistical fragments have replaced holistic approaches to the human body in medicine: Both the medical subject and the legal subject have been shattered into pieces amenable to computerized decision-making," Braman writes.
And Braman cites examples of computers superseding humans in certain decision-making: "When the complexity of computer programs creates effects not intended by humans, when computer programs called intelligent agents act autonomously, and when genetic algorithms that have evolved on their own create computer programs that act in ways the programs have developed on their own."
"Most people think that anything a computer does is something that it was programmed to do," Braman says in an interview. "But that's not the case. Now there are programs that have a enormous amount of discretion, that evolve themselves and learn. So now we have programs creating programs-genetic algorithms. They're basically evolving on their own without any human input into their design."
Consequences of such computerized decision-making were seen on "Black Monday," the stock market crash of October 19, 1987, when the Dow Jones Industrial Average fell 508 points-the largest one-day loss in history. It is widely believed that the decline was exacerbated by program trading, in which computers would automatically sell large amounts of a stock if it fell to a preset level or by a certain percentage.
"They start interacting," Braman says of the computer programs, "and there's a cascading series of effects that leads to consequences not predicted by those who wrote the software."
Braman is expanding her work on posthuman law into a book. Her ideas build upon her other recent work, which includes Change of State: Information Policy and Power, to be published in 2006 by MIT Press, as well as several other edited volumes. Change of State explores how governments use law and policy dealing with information, communication, and culture to exercise power. She also discusses the impact of trends in information policy-from "smart borders" to the design of the census to changes in surveillance practices-on everyday life.
Much of Braman's work examines U.S. law. "But," she emphasizes, "in the 21st century there is nothing we do that is not global."
