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Following the surge of litigation inspired by the State Street decision, the U.S. Supreme Court issued several landmark decisions that have reshaped the patent landscape, generally favoring reforms that improve patent quality and minimize opportunities for abuse or gamesmanship by patent holders.

Bilski v. Kappos (2010). This decision narrowed the scope of patent eligibility, effectively closing the door on the problematic business-method and software patents permissible under the State Street decision. The Supreme Court ruled that the machine-or-transformation test (under which a patent claim qualifies for consideration if the process either is implemented by a particular machine in a non-conventional and non-trivial manner or else transforms an article from one state to another) is not the sole test for determining patentability and that abstract ideas are not patentable.

Although the courts have not yet applied aiding and abetting statutes to the e-commerce world, they have not been afraid to apply the standard to brick and mortar institutions.172 In 2016, the 8th Circuit affirmed a district court decision holding that brick and mortar marketplaces, such as the flea market in the case, could be held accountable for the aiding and abetting of trafficking in counterfeit goods.173

In United States v. Frison, Jack Frison, the owner of Frison Flea Market, challenged a conviction of aiding and abetting the trafficking of counterfeit goods.174 Frison’s market operated three days a week under his supervision, and Frison’s income came from vendor rental fees, and admission charges to customers.175 The rental fees allowed vendors certain privileges, such as the ability to leave their inventory in the brick and mortar marketplace while it was closed.176 Among the other goods that were sold at the flea market, many of the vendors sold counterfeit clothing, footwear, purses, and accessories.177 Naturally, the sale of counterfeit goods at the Frison Flea Market did not go unnoticed.178 Frison and his market received warnings from police officers that he needed to prevent the sale of counterfeit goods because he was responsible for everything in his flea market, notices from the Record Industry Association of America warning off the sale of bootleg music, cease and desist notices from Coach, Inc. and Coach Services regarding the sale of counterfeit goods, complaints from the Better Business Bureau, and was the subject of warrants and seizures by the Department of Homeland Security, Immigration and Customs, and other federal officers.179 However, these punitive measures did little to deter the sale of counterfeit goods in the Frison Flea Market.180 In fact, the only major change was the Frison’s implementation of a $500 fine to vendors who were caught selling counterfeit goods.181

In an effort to harmonize the law across different states, some state legislatures have codified these common law intellectual property regimes.26 This process has impeded courts' ability to rely exclusively on case law as their source of rules. Nonetheless, courts continue to develop the law as needed, often independent of the statutes, and in the traditional, if somewhat attenuated, common law method. Courts work in tandem with legislatures in these contexts, retaining a secondary, but significant, role.

Second, the idea of intellectual property in these regimes is intricately connected to the concept of common law property. Common law property interests revolve around the idea of exclusion and use a variety of mechanisms to render it operational. 27 Since the common law process involves a bilateral dispute, common law property interests are ordinarily relational. In other words, they originate in actions alleging an interference with a pre-existing interest, and in adjudicating the interference, courts determine the nature and existence of the interest alleged to have been interfered with.

The U.S. Supreme Court’s recent decision in Warner Chappell Music, Inc. v. Nealy is a significant victory for writers and other copyright holders. The court held that a copyright owner who files a timely claim for infringement is entitled to damages for the entire period of infringement, even if it began more than three years before the lawsuit. This decision strengthens the protections provided by copyright law and ensures that writers can effectively defend their livelihoods by recovering damages that better approximate the harm done by infringement.

On January 12, 2024, the Authors Guild submitted an amicus curiae (or “friend of the court”) brief to the Supreme Court, urging the Court to uphold a lower court decision allowing copyright holders to recover damages for infringements that occurred more than three years before the lawsuit was filed. The Dramatists Legal Defense Fund, the Graphic Artists Guild, Romance Writers of America, the Songwriters Guild of America, and the Textbook & Academic Authors Association joined the Authors Guild in the brief.

The United States—the land of innovation—has an innovation problem. Two reports recently published announced that the country has fallen from its previous position as a leader in innovation. One report, the 2018 Bloomberg Innovation Index, stated that the United States dropped out of the top ten innovative countries for the first time in the six-year history of the index.1 The other report, the United States Chamber of Commerce’s Global IP Index for 2018, stated that the country remained atop the list generally but fell significantly with respect to patent protection.2 In fact, in the Chamber’s index, the United States dropped completely out of the top ten with respect to countries offering strong patent protection to innovators, falling to a tie for twelfth with Italy.3 Additional reports indicate innovative firms are leaving the United States and shifting their operations overseas to Europe and China.4

What is behind the collapse of the United States as an innovation leader? In part, it is due to the erosion of effective and reliable patent protection available to inventors and innovators.5 There is a strong correlation between effective patent rights and growing innovation economies, including investment in new ideas.6 One particular area of patent law that has contributed to the erosion of reliable patent rights is patent-eligible subject matter—or what types of inventions can be patented. Patent-eligible subject matter, as others have recognized, is a “real mess.”7 It is chaotic,8 “a foggy standard cloaked as a rule,”9 “rife with indeterminacy,”10 and in a “state of crisis.”11 Even U.S. Court of Appeals for the Federal Circuit (Federal Circuit) judges, who are partially responsible for the state of the doctrine, have expressed concern about the level of confusion surrounding the doctrine.12 Importantly, the issue of patent-eligible subject matter disproportionately affects two industries that represent a substantial sector of the United States economic and innovation base: biotechnology and computer-related inventions.13

In a unanimous decision, the Supreme Court issued an important ruling on June 8, 2023 that will strengthen brand holders’ ability to enforce their trademark rights against unauthorized commercial uses claiming protection under the First Amendment. Jack Daniel’s Properties v. VIP Products, No. 22-148. In particular, the Supreme Court reversed a 9th Circuit decision permitting an allegedly parodic dog toy sold as “Bad Spaniels”—a play on the whiskey brand “Jack Daniel’s”—to escape any Lanham Act liability under theories of infringement or dilution.

The Lanham Act creates causes of action for trademark infringement and dilution. In a typical infringement case, a court asks whether the defendant’s use of a mark is “likely to cause confusion, or to cause mistake, or to deceive.” 15 U. S. C. §§ 1114(1)(A), 1125(a)(1)(A). Where “expressive works” that use a trademark are involved, the Second Circuit created the “Rogers test” to protect First Amendment values of free speech. See Rogers v. Grimaldi, 875 F. 2d 994, 999 (2d. Cir. 1989) (Newman, J.).To apply the Rogers test, the court asks whether the trademark holder seeking to enjoin the trademark use can demonstrate (1) that the challenged use of a mark “has no artistic relevance to the underlying work” or (2) that it “explicitly misleads as to the source or the content of the work.” Id. at 999.

Intellectual property is today thought to be principally of statutory origin. Discussions of the subject invariably revolve around a close scrutiny of the federal statutes involved. Indeed, the frequency with which Congress amends the patent and copyright statutes seems to leave little doubt that it alone determines intellectual property’s precise content and coverage.1 Nevertheless, there exists a rather robust body of state law that is almost entirely the creation of state courts and is directed at creating entitlements in information, ideas, expression, goodwill, one’s image, and other related intangibles. These rights regimes are in turn collectively referred to as “common law intellectual property.”2 Examples include the right of publicity, unfair competition, common law copyright, trade secrets, misappropriation, common law idea protection, and passing off.

While each of these regimes covers a distinct intangible, they all share the same structural characteristics.3 Each originates in a cause of action that is grounded in tort, contract, or unjust enrichment and is tailored to the circumstances under which protection is deemed necessary. Unlike the one-size-fits-all federal copyright and patent statutes, these regimes allow courts to adopt a far more nuanced approach to intellectual property protection. Instead of relying on a single overarching theory to justify protection, courts look to the practical needs of a particular area, recognize multiple values as relevant for consideration there, and then adopt a highly contextual approach to protection, one best described as “antifoundational.” Additionally, the common law method that they employ develops the law incrementally, recognizing the need for caution in a rapidly changing social and technological environment, and allowing future courts to extend, limit, or at times altogether deny protection when circumstance and context change. I call this method of adjudication and rule development “pragmatic incrementalism,” in that it exhibits the characteristics of both legal pragmatism and common law incrementalism.

We are neither coders nor engineers but driven by a shared sense that the scope and speed of technological change has literally implicated us – folded us – in the workings of distributed intelligent systems that affect how we relate, speak, work. It is this transformation of our own agency we wish to comprehend, and the emergence of collective intelligences that bring human and non-human agency together in new constellations. While we realize that “stack design” is an abstract design proposition, we want to build on the technical metaphor of the stack as a layered system to facilitate a more holistic systems design conversation – and find out more about the role each of us might play in that process. Stacks are generally defined as “the set of technologies an organization uses to build a web or mobile application ... a combination of programming languages, frameworks, libraries, patterns, servers, UI/UX solutions, software, and tools used by its developers”.2 A quick look at the stacks used by key players in and across the platform economy suggests that these modularized systems have more in common than their fierce competition for users might suggest. Rather than repeating the usual invocations of global brands (and their market power), we want to shift the focus of our conversation to the stacks that sustain the power of these actors – a first step toward a more comprehensive understanding of the relational infrastructures behind data-driven societies, what we have termed the condition of distribution, and a different way of thinking about the design of (fairer) markets for a more cooperative economy.3 Adopting the principle that technology stacks are in principle subject to codesign, we showcase a series of complementary co-design processes to explore how we might best facilitate such a conversation. In these examples, we focus on the role of data – from the data monetization controversy (data-as-right vs data as-commodity) to “platform” cooperatives adding a digital technology and data governance layer to the much older organizational practices of the cooperative. We do not, however, assume a comprehensive understanding of data governance approaches. Our invitation to join the “stack design” conversation begins with a much simpler idea – the search for a narrative (with a wide range of characters and multiple conflicting plots) that might be able to frame a cross-sectoral systems design conversation in which many actors see a role for themselves. So before we turn to technology, we define our non-technological point of departure, leaving the question of where exactly to draw the line between the technological and the non-technological to the side for now. While we are not yet sure what the scope and structure of such a conversation will be, we do know that we want such a narrative to allow us to comprehend the condition of distribution that serves as infrastructural context for the ways in which we live and work.

The spinning wheel remains a cipher and a site of conflict, an everyday technology summoned to a contest over the meaning of democracy. Despite having political ties with Gandhi’s assassin, the Hindu nationalist prime minister Narendra Modi promotes homespun cloth and has done photo-ops operating a spinning wheel. Modi has meanwhile shuttered boards that gave artisans a voice in policy under the slogan “Minimum Government and Maximum Governance” (Vincent 2020). The technology itself does not guarantee self-governance, but it can be the symbolic base from which ever-enlarging acts of self-governance defeat an empire.

In the spirit of the technological cipher I propose the pursuit of “governable stacks”: an orientation toward ungovernable organising under digital colonialism.

Let us begin this chapter with a simple observation: no country will ever become wealthy when the critical infrastructure powering its economy is owned and controlled by foreign corporations. South Africa’s modern history arises from a European-led invasion by the Dutch East India Company, who stole the land and brutally exploited the indigenous people for profit. Critical infrastructure and resources – railroads, mines, industrial equipment, housing, and land – were dominated by white settlers at the expense of the African people. White authorities also waged psychological and conceptual warfare on the population through the imposition of colonial interpretations of religion, culture, and political economy. Bantu education sought to instill passivity and acceptance of race and class-based inequality. Today, US-based corporations are colonising digital technology. Instead of taking over the land, they are colonising critical digital infrastructure and human knowledge. They seek to own the world’s knowledge and culture (intellectual property), the material infrastructure (cloud server farms, transoceanic cables, and other hardware), the code powering computers (software), and information about people and nature (data). Converting knowledge into private property is foundational to their system of domination. When Big Tech corporations do share knowledge, it is done in ways beneficial to themselves. Google and Facebook, for example, are happy to “open source” some of their artificial intelligence software (e.g. Tensor Flow and PyTorch) because they use it to monetise Big Data surveillance.xviii Yet if their access to surveillance data were shut out by new technologies and privacy laws, they would close off much of their “open source” technology and increase the share of proprietary code in the software market. The problem we face today is digital capitalism and authoritarianism, not simply surveillance capitalism. As I previously wrote in the Mail & Guardian, the Fourth Industrial Revolution (4IR) narrative claims Big Data, intellectual property, centralised clouds, the Internet of Things, “smart” cities littered with surveillance, automation, algorithmic decision-making, Big Tech corporations, and surveillance capitalism are the way of the future. A creation of the ultra-capitalist World Economic Forum (WEF), the 4IR concept is an elite construct which serves a useful purpose at the periphery of empire by steering inquiry about tech into the WEF agenda. Like the colonial missionaries of past, they preach a new religion, the 4IR, as the saviour of society. Not surprisingly, the tools they promote are the tools of the masters: corporate ownership, intellectual property, centralised clouds, Big Data surveillance, the profit incentive, and private production for the market. This will not work for the common person. As Audrey Lorde put it, “the master’s tools will never dismantle the master’s house”. The threat of proprietary technology – and the selective sharing of knowledge by corporations – was captured by Archbishop Desmond Tutu, who stated in 2007: Freedom is an ongoing process, and not an end in itself … We are not shy to use the word freedom, and do so in contexts where its importance is not always recognised. In a digital world, there are many threads to a hard-won liberty. There are those who take our ideas and lock them up for business gain. There are those who will take the fruits of the human mind and lock them up, dishing them out to us in meted amounts for a fee that locks most of our people out. And there are laws that are reserved for business reasons and changed to rob society of its own rights ... To paraphrase Edmund Burke, who said, ‘the only thing necessary for the triumph of those who take away our freedom in the digital world is for organisations [like universities] to do nothing.’ But there are people, like our keynote speakers … who are not content to do nothing. Indeed, there is a whole movement that is rapidly gaining momentum worldwide arising out of the work of people like Free Software Foundation founder Richard Stallman, creating socially responsible businesses out of the very freedoms that we are talking about. Free Software and Open Source, Free and Open Resources for Education, new ways to create and share cultural artifacts such as music, writing, and art – all of these are changing the world for the better. Unfortunately, intellectuals who believe themselves to be "critical" of Big Tech have formulated a liberal imperialist narrative called the "techlash" that fails to address digital colonialism. These USEurocentric "critics", drawn from elite Western university and media outlets, ignore the centrality of property and the Free Software Movement. Much like the Sullivan Principles during apartheid,xix their solutions offer minor reforms that maintain US interests, such as weak privacy laws, "competitive markets" created through antitrust, and corporate ownership of the digital ecosystem. The "techlash" extends Francis Fukuyama's "end of history" to tech, where nothing fundamentally different can occur other than what we have seen in the West. If we are going to create a society that prioritises freedom and equality, we will have to develop a new framework to restructure the digital ecosystem. This requires more than the array of Free Software technologies outlined in this guide. We must also have supportive laws, critical education, and a grassroots movement to counter digital colonialism and replace it with a democratic digital commons owned and controlled directly by the people. There is no way around this. Laws like POPIA are designed to safeguard surveillance capitalism. This can be seen in its provisions that allow Big Data surveillance to flourish with mild restrictions said to “protect” your privacy. Under POPIA, exemptions include data processed for national security, such as “defense or public safety”, instances in which “the public interest in the processing outweighs, to a substantial degree, any interference with the privacy of the data subject”, and instances where the processing provides “a clear benefit to the data subject or third party that outweighs … interference with [their] privacy”. The “public interest” includes “national security”, “the prevention, detection and prosecution of offences”, “important economic and financial interests of a public body”, and “historical, statistical or research activity” (as well as the “special importance of the interest in freedom of expression”). POPIA also allows people to “consent” to Big Data surveillance through terms and conditions, defined as “any voluntary, specific and informed expression of will in terms of which permission is given for the processing of personal information.” Yet we know that nobody can read these terms and conditions, even if they wanted to. One study showed that the average person would have to spend about 76 working days per year to read the Terms and Conditions of the websites they visit. Google South Africa sent me about 20,000 words of “terms and conditions” covering the Google technologies used in South African schools. Users can either “consent” to Google’s data processing, or they can’t use its technologies at all. Forcing people to endure surveillance just to visit a website, join a social network, or use a weather app, on the basis that they “consent” is unjust. Yet POPIA does not appear to prohibit this “take it or leave it” surveillance society. Digital capitalism has a business model crisis. It concentrates and extracts wealth, cedes authoritarian control over digital experiences to transnational corporations unaccountable to the public, and subjects users to surveillance, advertising, and manipulation. If it moves to a “pay-for-ethicaltreatment” model, it will generate class inequality, especially for the poor who have no disposable income. In a commons-based system of digital socialism, knowledge is free and open for all to consume, modify, and share. Free Software, interoperability, federated services, and decentralisation tools provide the public with the means to own and control their experiences. To support the global commons, production and maintenance of digital technology and culture could be paid for by the rich through progressive taxation and heavy taxes on Big Tech corporations. This requires a Tech New Deal that transforms the digital ecosystem from a profit-seeking enterprise into a publicly funded global commons. A movement for digital socialism dovetails with efforts to build an environmentally sustainable global economy based on wealth redistribution and equality, not limitless growth. Many of the core technologies powering the digital revolution were funded by the state, including computers, the internet, and GPS. The state also supports the education of computer scientists and engineers. Research and development institutions like the CSIR could help develop decentralisation technologies like FreedomBox instead of surveillance systems like Cmore. University researchers could work on voice assistants like Almond, which does not spy on its users, as they are doing at Stanford University. With enough funds from taxes, talented developers could be awarded comfortable middle-class salaries to work on public interest technologies, instead of joining exploitative institutions like Google and Microsoft, who pay researchers a few million rand per year. As noted in previous chapters, government policy can require the use of People’s Tech in schools, universities, and the public sector; protect user privacy; and teach people about tech freedom. But none of this will occur without you. Technology corporations have concentrated enormous sums of wealth into the hands of a few, and they will not give it up without a serious fight. It doesn’t help that elected representatives are tempted to exploit corporate tech for their own surveillance and control. Nhlanhla Mabaso, a champion of Free Software, headed the Open Source Centre – since renamed the Meraka Institute – at the CSIR. (“Meraka” is Sotho for “open grazing land”.) In a research interview, Mabaso told me some of his colleagues argue the government’s Free and Open Source Software policy preference means “open source is law” in South Africa. Efforts by Mabaso and his peers once aimed to undermine the power of corporations like Microsoft from colonising the South African tech ecosystem. Decades earlier, anti-apartheid activists protested against the use of computers from tech corporations like IBM to facilitate the apartheid system. They eventually forced IBM to withdraw its business operations from South Africa. During the struggle against apartheid education, Zwelakhe Sisulu asserted: We are not prepared to accept any ‘alternative’ to Bantu Education which is imposed from above. This includes American or any other imperialist alternatives designed to safeguard their selfish interests in the country, by promoting elitist and divisive ideas and values which will ensure foreign monopoly exploitation continues. Only through democratic institutions and committees could students, parents, and teachers take control of their own education. “We are fighting for the right to self-determination in the education sphere as in all other spheres … It has become a struggle of the whole community with the involvement of all sections of the community”, Sisulu said. In the neoapartheid era, a new wave of US tech transnationals are pushing oppressive products into the country once again. A People's Tech movement to kick Big Tech out of Africa could form a critical part of the global protests against the enduring legacy of racism and colonialism. Activists across the world could unite to form a targeted boycott, divestment, and sanctions (BDS) movement centered on Big Tech corporations and their supporters in the United States. South African communities are tasked to build a digital ecosystem that the people own and control, so they are not subjects of American or any other imperialist powers. People’s Tech for People’s Power, a holistic solution based on a Free and Open Source technology commons, socialist legal solutions, people's education, subsidies for public interest technology, and a vigorous grassroots movement, is urgently needed to avert disaster and build a truly democratic and egalitarian society.

In this book I propose a different way of thinking about the ethicopolitics of algorithms. What I call a cloud ethics is concerned with the political formation of relations to oneself and to others that is taking place, increasingly, in and through algorithms. My use of the term cloud here is not confined to the redefined sovereignties and technologies of a “cloud computing era,” as understood by Benjamin Bratton and others, but refers to the apparatus through which cloud data and algorithms gather in new and emergent forms. The cloud in my cloud ethics is thus closer to that envisaged by John Durham Peters, for whom clouds are media in the sense that they are “containers of possibility that anchor our existence and make what we are doing possible.” To consider algorithms as having ethics in formation is to work with the propensities and possibilities that algorithms embody, pushing the potentials of their arrangements beyond the decisive moment of the output. A cloud ethics acknowledges that algorithms contain, within their spatial arrangements, multiple potentials for cruelties, surprises, violences, joys, distillations of racism and prejudice, injustices, probabilities, discrimination, and chance. Indeed, many of the features that some would like to excise from the algorithm—bias, assumptions, weights—are routes into opening up their politics. Algorithms come to act in the world precisely in and through the relations of selves to selves, and selves to others, as these relations are manifest in the clusters and attributes of data. To learn from relations of selves and others, the algorithm must already be replete with values, thresholds, assumptions, probability weightings, and bias. In a real sense, an algorithm must necessarily discriminate to have any traction in the world. The very essence of algorithms is that they afford greater degrees of recognition and value to some features of a scene than they do to others. In so doing, algorithms generate themselves as ethicopolitical beings in the world. If to have ethics is not merely to have a code prohibiting, for example, bias or assumptions, but to work on oneself via relations, then the ethicopolitics of algorithms involves investigations of how they learn to recognize and to act, how they extract assumptions from data relations, and how they learn what ought to be from relations with other humans and algorithms. To be clear, the cloud ethics I propose here does not belong to an episteme of accountability, transparency, and legibility, but on the contrary begins with the opacity, partiality, and illegibility of all forms of giving an account, human and algorithmic. To advance a cloud ethics is to engage the ungrounded politics of all forms of ethical relations. The significant new ethical challenges that algorithms seem to present to society actually manifest novel features of some profoundly old problems of the grounds for ethical action. As Judith Butler explains in her Spinoza lectures, the demand to give an account of oneself will always fall short, for “I cannot give an account of myself without accounting for the conditions under which I emerge.” If one assumes that the determination of an unequivocal I who acts is a necessary precondition of ethics, as Butler cautions, then this identifiable self is “dispossessed” by the condition of its emergence in relation to others. For Butler, this persistent failure to give a clear-sighted account does not mark the limit point of ethics. On the contrary, the opaque and unknowable nature of making all kinds of acting subjects is the condition of possibility of having an ethicopolitical life. In short, and in contrast to the equation of ethics with transparency and disclosure, ethical responsibility is sustained by conditions of partiality and opacity. My notion of a cloud ethics extends the opacity of the human subject, envisaging a plurality of venues for ethical responsibility in which all selves—human and algorithmic—proceed from their illegibility. The apparent opacity and illegibility of the algorithm should not pose an entirely new problem for human ethics, for the difficulty of locating clear-sighted action was already present. The I who forms the ethical relation was always in question and is now, with algorithms, in question in new ways. Though the mathematical propositions of algorithms cannot be made fully legible, or rendered accountable, they can be called to give accounts of the conditions of their emergence. These conditions include some relations that are identifiably between humans and algorithms—such as the selection and labeling of training data, the setting of target outputs, or the editing of code “in the wild,” for example—but others still are relations of algorithms to another algorithm, such as a classifier supplying the training data from which a neural network will learn. In all such instances of iterative learning, the significant point is that the conditions of an algorithm’s emergence—a composite of human-algorithm relations—are venues for ethicopolitics. In a discussion on the impossibility of the transparent algorithm, the brilliant and generous scholar of black studies and machine learning Ramon Amaro once said, “Well what would it be if we even could open it? It’s just math.” Of course, he intended the comment as a provocation, but mathematics is never only “just math,” as Amaro’s work vividly shows. To reflect on the conditions of an algorithm’s emergence is also to consider how, as mathematical knowledge forms, algorithms have achieved the status of objective certainty and definiteness in an uncertain world. Ludwig Wittgenstein observed mathematical propositions to be “given the stamp of incontestability,” a mark of the “incontrovertible” and an “exemption from doubt” that other propositions, such as “I am called,” are not afforded. For Wittgenstein, mathematics as practice—like all other language games—is concerned with particular uses of propositions, where “what a proposition is, is in one sense determined by the rules of sentence formation, and in another sense by the use of the sign in the language game.” His concern is that the mathematical proposition has achieved a particular status of certainty in an otherwise uncertain world, so that it becomes “a hinge on which your dispute can turn.” For Wittgenstein, the mathematical proposition should be regarded as no less doubtful or uncertain than the “empirical propositions” otherwise made about the world. Indeed, Wittgenstein’s point is to address mathematical propositions as empirical actions that are “in no way different from the actions of the rest of our lives, and are in the same degree liable to forgetfulness, oversight and illusion.” Following Wittgenstein, the use of mathematical propositions is profoundly social and, in my reading, ethicopolitical. An algorithm is formulated through a series of truth claims about its match to the world, and yet, in its use in the world it is as prone to forgetfulness, oversight, misrecognition, and illusion as any other language game. Algorithms such as those used to detect latent social unrest in the city may appear in the world as Wittgenstein’s “hinge on which your protest can turn” in the most direct sense that the hinge delimits and circumscribes the arc of the politics of protest. But the algorithm as hinge does not merely mark the limit point of resistance; rather, it presents something as a singular optimal output, when it is actually generated through multiple and contingent relations. My cloud ethics considers the algorithmic hinge to be akin to Karen Barad’s scientific apparatus, which decides what matters in the world, what or who can be recognized, what can be protested, and which claims can be brought. Understood in this way, the algorithm is not the hinge as an incontrovertible axis, exempted from doubt, on which all social, political, and economic life turns. “The hinge point,” as Foucault differently identifies, can also be the point of “ethical concerns and political struggle,” as well as the point of “critical thought against abusive techniques of government.”

Yet, what I propose here is that machine learning political orders reverse Deleuze’s dictum so that the political problem is constituted by the posited solution; or, the solution gets the problem it deserves. The retroactive logic of deep learning commonly begins with the identification of the target output from the model, actively using the output signals that diverge or converge on the target as an experimental space of modulation and adjustment. Though there are multiple possible functions or ‘solutions that will match the data’, a machine learning algorithm will use ‘two sources of information to select the best function: one is the dataset, and the other (the inductive bias) is the assumptions that bias the algorithm to prefer some functions over others’. 40 In order to change the output signal, the weights within the hidden layers of the neural network adjust and modify the signal that feeds forward to the next layer. Why does this computational process matter for how the political problem and the solution interact? The retroactive move from target solution to the weights in the model means that the parameters and dimensions of an intractably difficult political question – democracy, pandemic response, border security, stability in the economy – become configured as infinitely adjustable in relation to the solution. Where the concept of problematisation suggests a multiplicity of actions that could take place under the broad unifying conditions of the formulation of the problem – and, indeed a space for normative deliberation of possible actions – this retroactive paradigm forecloses the multiplicity of plural solutions to a single target, and reduces the framing of the political problem to the weighting of inputs. Every adjustment or modification of the parameters in the deep learning model is simultaneously an arrangement of the political problem.

To begin at the ‘end’, with a target output of the model, is thus to transform radically what a political claim can be in the world. For example, machine learning algorithms are increasingly being deployed in immigration and borders decisions. The introduction of machine learning in the sorting and classification of visa applications does not merely automate some aspects of a previously human centred bureaucratic process. More than this, the building of a model of the flows of immigration claims actively constitutes what a border can be and how it is understood as a political question. Moreover, the space to challenge the political formulation, such as for example to question the racialised criteria that are applied to the judgement on a person, is also closed out by the machine learning process. In contrast to the rules-based models that I described as engineering racialised assumptions into association rules (for example, in Rakesh Agrawal’s data mining models), machine learning learns and generates new racial formations from the data examples. With machine learning forms of classification, there are no criteria as such; there are only inputs, outputs, features, and functions. The model will also adjust with the volatilities and geopolitical disruptions of migration, shifting its thresholds so that the derived outputs are decoupled from the input data of a visa application.

In the pre-cybernetic era—that is to say, before the 1940s—machines were intended to emulate humans; their actions resembled human behavior, but ostensibly without intent or emotions. This is why Donna Haraway describes pre-cybernetic machines as “haunted.”13 They seemed animated by ghosts, reminiscent of Walter Benjamin’s automaton that was inhabited by a hunchbacked dwarf. Machines were not self-moving, self-designing, or autonomous. They could not achieve human dreams, only mock them. In turn, humans related to machines by using or acting upon them: switching them on or off, using them as tools to achieve an end. Today, the relationship between human and machine is based on internal, mutual communication in a feedback loop. Early machines were led; today, machines lead us.14 This does not mean that machines have simply become humanized through the proliferation of androids. Rather, humans have surrendered consciousness to AI, becoming obedient and predictable. In the twenty-first century, machines have blurred the distinction between the artificial and human mind, not only because machines can imitate human functions, but because humans have become increasingly passive, since we are now subject to neuropower. Within the cybernetic episteme, it is no longer enough to talk about a “control society”; we must talk instead about a composite of interlinked forms of oppression (exploitation, alienation, and domination), in tandem with extreme securitarianism. Another way to see the cybernetic episteme is as the reconceptualization of social worlds into information-processing systems. Practices of computation are used to produce new organizational and infrastructural apparatuses, which in turn create value and profit by exploiting and disposing of human life. Social worlds are subsumed into technologies through techniques such as statistical forecasting and data modeling. The cybernetic episteme stems from a world brought into being by Europeans; this world began with the discovery of the “new world” and the creation of empires and colonies (which coincided with the scientific revolution). In this sense, the cybernetic episteme is inseparable from the Western civilizing project for the whole world, which connected disparate places through technologies like the telegraph and steam shipping, often powered by the extraction of fossil fuels like coal. This project has culminated in globalization as the deregulation and financialization of world economies.15 The Western civilization project, based on Enlightenment values including equality, peaceful public life, access to modern science, the rule of law, democracy, and technological progress, involved the creation of infrastructure to unify nations and the world.16 We can call this infrastructure the “technosphere.” The technosphere comprises not only digital technology but all machines, factories, computers, cars, buildings, railways, and mobility infrastructure, as well as systems of food production, resource extraction, and energy distribution. Today, the infrastructure of the world—the technosphere—is shaped by information, which means that the world we inhabit is designed by data.17 The technosphere is a supplement humans have created to help overcome the limits of “human nature” insofar as humans cannot live independently from structures geared towards sustaining life. The technosphere has promised to enable us to increase production and reproduction with less human effort. Moreover, the technosphere is also regarded as the main tool humans have to fight decay, entropy, and death, since it comprises all the structures humans have built to keep themselves alive on the planet. The total mass of the technosphere amounts to fifty kilos for every square meter of earth’s surface—a total of thirty trillion tons, which coexists with the diminishing hydrosphere (water, the frozen polar regions) and the biosphere (all of earth’s living organisms).18 The ultimate price of the technosphere is global warming and environmental devastation. Like humans, the technosphere needs external energy input, which is not sustainable as long as it comes from fossil fuels that will eventually be depleted. From this standpoint, the cybernetic episteme represents the gradual merging of human activity into the activity of what we have built and surrounded ourselves with. Much of this built environment is invisible.19 Infrastructure and data are partially occult because we are alienated from them, even as we are produced and managed by them. The invisible infrastructure that sustains our lives is what matters politically right now. And insofar as the technosphere is cybernetic, it is inextricable from capitalism and politics.

Whatever the case, capital and markets must now be understood as magnetic fields as well as key determinants of the climate system on earth. Furthermore, whether the old distinction between the economic power of corporations and the political sovereignty of states still holds is more and more open to debate (Barkan 2013). Most global corporations aspire to secede from everybody else while exercising surveillance on everybody else. Their big dream is to be exempt from taxes and to be free from accountability; in short, to enjoy the kind of immunity and state of exceptionality we used to recognize only in truly sovereign powers. In a book about what she terms surveillance capitalism, Shoshana Zuboff (2019) argues that a global architecture of behavior modification is underway. Driven by powerful states, high-tech corporations, and military apparatuses, surveillance capitalism threatens what she calls “human nature” in the twenty-first century, just as industrial capitalism disfigured the natural world in the twentieth. She shows the extent to which vast wealth is accumulated in what she terms new “behavioral futures markets,” that is, markets where predictions about our behavior are bought and sold, and the production of goods and services is subordinated to new technologies of behavioral modification. Indeed, capital, especially finance capital, has become our shared infrastructure, our nervous system, the transcendental maw that nowadays maps out our world and its psycho-physical limits (Zuboff 2019). To the millennial properties Jean and John Comaroff highlighted at the start of this century (Comaroff and Comaroff 2000), capital has now blended the magnetic attributes I have referred to above.

Around us, it looks as if nothing escapes its control. Affects, emotions, and feelings, manifestations of desire, dreams, or thoughts—no sphere of contemporary life has been left untouched by the spread of capital. No sphere is shielded against its atmospheres, its radiation, and its charged particles. Capital now extends its grasp deep into the underbelly of the world (Konings 2018; Edwards, Becker, and Colwell 2012). Soon, mining companies will unleash their collection of vehicles on the seabed beneath international waters. They will

Life and society worldwide have been transformed by digital technology, including the fabrics of emotional relationships. Many believed the internet would be the largest ungoverned space in the world with unlimited emancipatory potential, and trusted Big Tech to make the world a better place. Yet power and capitalism filled that space with surveillance systems, the production of private capital, the monetization of data, and the control of human lives. Social media now shape daily life and many have lost faith in the possibility of a shared consensus reality. We are living in a scenario similar to one imagined by Black Mirror: our belief in digital communication and social media creates narcissistic personalities, selves dissociated and dislocated from their reflections online. Digital communication offers an opaque mirror that delivers egos without bodies, eliding alterity.

The collapse of reality, however, is not an unintended consequence of advancements in, for instance, artificial intelligence: it was the long-term objective of many technologists, who sought to create machines capable of transforming human consciousness (like drugs do). Communication has become a site for the extraction of surplus value, and images operate as both commodities and dispositives for this extraction. Moreover, data mediates our cognition, that is to say, the way in which we exist and perceive the world and others. The image—and the unlimited communication promised by constant imagery—have ceased to have emancipatory potential. Images place a veil over a world in which the isolated living dead, thirsty for stimulation and dopamine, give and collect likes on social media. Platform users exist according to the Silicon Valley utopian ideal of life’s complete virtualization.

Examining the practices of antipolitics and reassembly in this context reveal a new form for the Military-Technological Complex. Bridging the divide between the material power of the DoD and social power of civil society, a new breed of “defence-tech” companies like Anduril have carved out a niche as bespoke contractors. Having drawn engineering talent from both traditional defence companies and Silicon Valley, they exclusively but openly court defence contracts, invoking a discourse of patriotism without risking the alienation of a wider consumer market. The ease and speed with which they began providing this work speaks to the significant power of the DoD and, in turn, the resilience of the Military-Technological Complex as an assemblage. Underlying this entire process is a constant tension between the predominantly compulsory power of the DoD and the predominantly productive power of civil society. Sizeable contracts provide a compelling material incentive for many tech companies to provide the technologies sought by the DoD, but are in conflict with the ethical pitfalls publicised by civil society. In some ways, each mimics the other. As the DoD has adopted a discourse of patriotism to assuage ethical concerns, civil society has underlined the material risk to businesses with large consumer markets seen to be enabling these developments in warfare. As a result, the civil-military industrial divide appears more porous than ever, raising valuable questions about contemporary warfare. Project Maven exemplifies a certain fluidity, in that its technologies were originally developed for the consumer market, weaponised by the DoD for drone footage analysis, and are now being “re-legitimised” through their transfer back into the civilian sphere for humanitarian and public health purposes. Such a process arguably reflects a late-modern - or liquid modern - blurring of the boundaries between war and peace, military and civilian, public and private. A blurring civil-military distinction in this regard must be understood in the context of a geographically and temporally expanding militarism observed in the rise of “unending” and “everywhere” wars. Similarly, in Graham’s conceptualisation of the “battlespace” of cities, he observes it “has no front and no back and no start or end… the concept… thus works by collapsing convention al military-civilian binaries.” Common to these suggestions that conventional ties between war, space and time are coming undone, however, is a focus on their practice. The ascendancy of the Military-Technological Complex suggests that the nebulous expansion of warfare across space and time not only pertains to how it is practiced but also how its means are developed and procured. It is not a stretch to suggest that this expansion, in turn, risks normalising new imaginations of violence. And given that “violence needs to be imagined in order to be carried out,” one wonders where this normalisation may lead. Conceptualising the Military-Technological Complex as an assemblage is particularly appropriate in the context of liquid modernity. Absent of rigid, ‘arboretic’ structures, it takes shape in a manner consistent with Bauman’s interpretation of sociality, “spreading rhizomically and sprouting formations of varying degree of durability, but invariably unstable, hotly contested and devoid of foundation to rely on.”

In this paper I argue that blockchains are being used to intensify commodification of housing and land, but contradictorily, in fewer cases, distributed ledger technologies (DLTs) are also being proposed as tools to reimagine and computationally facilitate alternative housing and land futures.1 Certain digital marketplaces (STOMarket, 2023; Swarm, 2022) use tokenization to more covertly facilitate real estate investment for high net-worth accredited investors, reproducing racial property regimes (Bhandar, 2018) outside of mainstream planning efforts. With the mechanism of the security token offering (STO), crowdfunding and venture capital are combined with cryptocurrency to create a “tokenized venture capital fund” tied to tangible assets, such as ownership rights in housing, real estate, or land (SolidBlock, 2022). In the STO, distributed ledgers are proposed to be used as the technology underlying new forms of land/property documentation, ownership, and inhabitation – from conducting and recording land surveys and title creation to transference of land/property rights. This paper looks toward the means of contesting predatory formations around the spatial data financialization of housing and land, critically comparing distributed ledger projects that claim to inject equity in the system by extending purchasing power to marginalized people of color in the United States (EquityCoin), others that pose alternative housing models and economies such as cooperativism and commoning (DOMA), and still others that seek land rights (Daniel and Ifejika Speranza, 2020) and Indigenous data sovereignty (Rodriguez-Lonebear, 2016). This research is positioned alongside scholars critically analyzing the implications of distributed ledgers for urban governance and alternative economies (Gloerich et al. 2020).

In this paper, I show how DLTs can act as digital architectures of exclusion and as digital architectures of inclusion. This can mean inclusion in existing forms of capitalism, inclusion in access to the housing market, and inclusion in acknowledging informal land rights to receive state benefits. This paper is not meant as a definitive study of all DLT land and housing projects but rather proposes a framework for critically questioning and analyzing the promises/claims of a given STO/DLT project. I suggest that it is not the so-called disruptive potential (McKinsey, 2016) of blockchain technology at large that will ensure equitable outcomes, but rather the intentionally designed organization, ownership, and management models that the distributed ledger can computationally facilitate. Guideposts for the design of these models may connect with the platform cooperative and technological sovereignty movements. However, the limits of datafication and tendencies of digital technologies toward cooptation and appropriation must be acknowledged (Scott, 2020; Tenner, 1997). Critical scholars should challenge technosolutionist narratives and question the limits of digital technology on commoning or counter-hegemonic process that demand flexibility, negotiation, and interaction that exceeds computational bounds.

From its inception, America encouraged immigrating foreigners, private citizens, state officers, and travelling traders to smuggle in industrial designs, drawings, and European innovation to aid in state-building. America pursued contradictory paths in which it incentivised industrial espionage and theft abroad while firming up intellectual property rights and protecting innovations at home.

Historian Doron Ben-Altar portrays America’s Treasury Secretary Hamilton’s ambition as an enabler in what he describes in Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power as “unabashed, state-sanctioned flouting of British law”. America at inception fits the model of a den of rogue economic hitmen and intellectual pirates.

Mirroring the role of historical colonialism in the establishment of early capitalism, data colonialism is the process through which data readies that which it represents for capitalist appropriation and extraction. By facilitating and naturalising the production and capture of ever-newer forms of data, data colonialism is able to find corners of of life that have not yet been capitalised upon (Ibid. ”Data colonialism” 339-343). Couldry and Mejias call this the “double process of renewing colonialism and expanding capitalism” (”The cost of connection” 188). They warn against the role of data colonialism in the emergence of a new form of capitalism, one characterised by “the capitalization of life without limit” (Ibid. 3). The appropriation of nature and people that Wynter described in historical colonialism are renewed in the appropriation of “human life through extracting value from data” (Ibid. 188). By focussing on the quantification of social life and the role of this datafication in the renewal of colonialism and the expansion of capitalism, Couldry and Mejias show the devastating eects for the possibility of just social relations and selfdetermination (Ibid. 188-91).

Blockchain-based systems have been shown to proliferate the logics of data colonialism. They ready uncaptured territories of life for continuously expanding value extraction – a form of “digital frontierism” (Thatcher, O’Sullivan, & Mahmoudi 992) that in the early days of the technology spawned goldrush metaphors and analogies, such as the ‘mining’ of Bitcoin in the unregulated ‘Wild West’ (Maurer, Nelms, & Swartz 262; Maurer & Swartz 222). The various forms of tokenisation that take place on blockchains can turn the things they represent or contain in their metadata – votes, stakes, access rights, personal data, etc – into trade-able items that can be controlled in new ways through distributed governance structures. While this is seen by many as an opportunity to democratise, it does not necessarily have this eect. For example, blockchain technology has been forced onto vulnerable communities such as refugees who have no real choice but to give away their personal data to be stored in immutable systems in exchange for basic necessities – data which may be capitalised upon in unforeseeable ways in the future (Howson ”Climate crises” 4-5; Howson ”Crypto-giving” 814-815). Through its proposed and real use in (social) governance systems – in places often deemed underdeveloped from a Western perspective (Crandall 286-88), but also more generally, for example in blockchain-based ID systems, supply chain transparency systems, or dating apps – blockchain technology represents an “emerging cartography of control” that is always looking for a new frontier to map (Jutel 3). This often happens under the guise of lofty societal goals, such as the development of solutions against climate change that have led to projects like Nemus (“Treasure the Forest”) and Moss (“Moss Amazon NFT”) that tokenise pieces of the Amazon rainforest to be sold as NFTs. They continue the rarity economy that NFT collectibles propagated – in which special characteristics such as caves or waterfalls might increase the value of the NFT of a piece of land – and are governed from afar by stakeholders in a DAO. Just like land and labour in historical colonialism, these tokenized representations of the world are abstracted assets that promise a future stream of income that care little about the survival of the thing they represent (Juárez). Despite claims about solving climate change, the rainforests themselves only become meaningful in those DAOs if they produce monetary value for their stakeholders. These projects exemplify the way in which blockchain colonialism expands on data colonialism by introducing novel governance systems that are embedded even more intrinsically in the logics of economic exchange, making possible further alienation from the nature and life at hand.

This article argues that blockchain represents a form of ‘platform imperialism’ (Jin, 2015) that extends both the cultural and economic power of Silicon Valley and American geopolitical interests. Blockchain has emerged as one of the central technologies of the ICT4D paradigm drawing together foreign governments, NGOs, platform developers and corporations in shaping developing world economic policy and governance practices. The US State Department has played a crucial role in coalescing these networks through initiatives such as Civil Society 2.0 which cast Silicon Valley platforms and a culture of techno-solutionism (Morozov, 2014) as universal. What is distinct about blockchain platform imperialism are its claims to algorithmic governance and powers of cartography. As part of ‘Data’s Empire’ (Isin and Ruppert, 2019), blockchain undermines the developing world state’s ability to control its own resources, while mapping new ‘territory as an object of power’ (208). Blockchain complements techno-colonial processes of data extraction and computational capitalism (Beller, 2018) by using code to lock in proprietary relations.

Opening new terrains of data and expanding network technologies does not depend upon imperial coercion but an assemblage of development agencies, foreign governments and platforms all ‘celebrating the transformative nature of ICTs’ (Ndemo, 2019: 27). Within these contours, there are rival cyber-powers and platforms as well as indeterminacies of connectivity which diffuse the exercise of imperial power. However the ‘spiritual hegemony of American-based entrepreneurship’ (Jin, 2015: 16) pervades these networks. The US has relied on the soaring rhetoric of freedom, democracy and empowerment through connectivity in shaping global communication systems. American hegemony in ICT4D can be explained in political-economic terms as the support of domestic capital and platforms, the leadership of governing bodies such as ICANN and the US State Department’s long-standing interest in tech-centric soft power initiatives. This continuity of soft power and cultural imperialism spans the ‘free flow of information doctrine’ (Schiller, 1975) during the Cold War to the ‘freedom to connect agenda’ (Powers and Jablonski, 2015: 74) in the era of network computing. As articulated by former US Secretary of State Hillary Clinton, connectivity is the ‘great leveller’ creating ‘a common body of knowledge that benefits and unites us all’ (US Department of State, 2010).