Biopolitics was not only necessary to the formation of modern neoliberalism, but continues to be essential in its maintenance and informs its direction

Nicholas, School of Law, Criminology and Government, University of Plymouth, Plymouth, UK. “Information biopolitics: copyright law and the regulation of life in the network society.” International Review of Law, Computers & Technology, DOI: 10.1080/13600869.2020.1784563. LJS

The dispersal of power which biopolitics attains to is characteristic of liberalism, which, as a principle and method for rationalising the exercise of government, ‘obeys the internal rule of maximum economy’ (Foucault 2008, 318). The modern state’s aims of health and social productivity, as discussed above, called for updating governmental reason towards complying with rational behaviour, as in foreseeing and managing the allocation of scarce resources towards alternative ends (Grenier and Orléan 2007). Governmental action would not be evaluated on moral grounds of its legitimacy or illegitimacy, but rather on its success and capability to reflect on its own necessity, usefulness and potentially delivered harms: the principle of government shifted ‘from external congruence to internal regulation’ (Lemke 2011, 46). This would be optimally served in the spirit of governmental self-limitation, by dispersing governmental knowledge across institutions, structures and forces that operate within the social body – the market included. On the other hand, liberal governmentality of this mode and spread restrained state authority ‘through the invention of universal individual rights and subordinated it to the interests of civil society through the gradual introduction of liberal democratic representative institutions’ (McFalls and Pandolfi 2014, 177). Linking liberalism with political economy, Foucault points how the limited state prospect forwarded the – rational – imperative of self-regulation. Biopolitics also instils this imperative into individuals as self-discipline: an internalised obligation to look after their self (in terms of health, lifestyle and so on) in order to be productive subjects (see also Macherey 2015). Within this context Foucault credits biopower ‘as one of the basic tools for the establishment of industrial capitalism and the corresponding type of society’ (2003, 36), acknowledging that capitalism ‘would not have been possible without the controlled insertion of bodies into the machinery of production and the adjustment of the phenomena of population to economic processes’ (1978, 141). An important transition started taking place in the second half of the twentieth century, where Foucault traced the development of neoliberal governmentality as a response to liberalism’s inflating state-phobia. He observes the conversion from Europe-based social market economies to extreme ‘too much government’ stances of American neo-liberalism, which seeks to extend the rationality of the market, the schemas of analysis it offers and the decisionmaking criteria it suggests, to domains which are not exclusively or not primarily economic: the family and the birth rate, for example, or delinquency and penal policy. (2008, 323) The implications which we may distinguish in this are crucial. First, in continuation of liberalism’s state limitation project, neoliberalism ‘subordinated the state to market veridiction by reducing its role to the encouragement of biopolitical techniques of individual and societal self-government’ (McFalls and Pandolfi 2014, 177). Moreover, the dispersal of power is closely followed by increasing privatisations of management and administration aspects, including the transfer of dispersed biopolitical technologies and their socially permeating effects under private control. Second, liberalism referred to the rule of maximum economy to optimise life; neoliberalism in the name of life maximises economy. This indicates a key reorientation of focus for biopolitics. Whereas biopower ‘endeavours to life, subjecting it to precise controls and comprehensive regulations’ (Foucault 1978, 137) its ends are now aligned to inserting life processes into the market. It may thus serve ‘the interests of capitalist accumulation and market forces by eliciting and optimizing the life forces of a state’s population, maximizing their capacity as human resources and their utility for market capitalization’ (Nadesan 2008, 3). If biopolitics connotes interventions at the levels of the body, birthrates, sexuality, conduct and everyday life, and especially where such interventions are aimed at reproducing a prevailing sense of normalisation, neoliberalism subjects biopolitics and encompassed flows of life processes to market rationality and the cynicism, perhaps, of applying to this context the purely economic instrumentality of terms such as ‘utility’, ‘budget’, ‘investment risk’, ‘liquidation’ and so on. To summarise the first caveat, neoliberal developments denote along with privatising state power the privatisation of biopolitics, and then a qualitative shift towards intensifying control of life processes as market resources. 4.2.2. New biopolitical technologies Biopolitics in the past included efforts in public health, medicine, psychiatry, public policing and sexuality sciences; for the twenty-first century it has evolved to employ now genetic technologies, biological weapons, global communication networks, and advanced digital analytical tools (Koopman 2014). On top of that, political technologies of control14 seem now fully submerged in the widespread use of globally distributed, ubiquitous and pervasive digital technologies: a fast-expanding chaotic structure of intersecting apparatuses (dispositifs), within the operation of which are absorbed all notions of ‘the Internet of Things’, ‘algorithmic governance’ and so on – even the over-encompassing concept of the ‘Network Society’. Therefore, the reach of biopower deepens across populations, its impacts are becoming more immediate and intensified, whereas uncontrollable diversities of private and public entities get involved in determining how, when and towards whom power is exercised, by virtue of their access to or ownership of the intertwining hardware and software setups and their management. 4.3. Biopolitics revisited Foucault’s death meant that the link he began to establish between biopolitics and neoliberalism remained unclear. In addition, it coincided with a turning point in neoliberalism’s development, that is the rise of neoliberal capitalism during the Reagan-Thatcher era (Harvey 2005). The emerging neoliberal state, according to its critics, would tend to intervene in the marketplace to protect financial interests, while principles of competition and fairness – otherwise championed by neoliberal theory – would be increasingly negated in ‘the extraordinary monopolization, centralization, and internationalization of corporate and financial power’ (Harvey 2005, 203). The gap left by Foucault, invited several reformulations of his biopolitics concepts. Among those, the following discussion will engage with the work of Hardt and Negri, which allows some direct connections to IPrelated issues. In their ongoing project (2000, 2004, 2011, 2017), they have revised the notions of biopolitics, biopower and governmentality towards constructing a critical response to late neoliberal capitalist globalisation. Significantly, their work blends biopower with neo-Marxist perspectives of labour and, although criticised for overstretching or even blurring Foucault’s original take on biopolitics, it is recognised for breathing into it a fresh activist dynamic (Lemke 2011; Koopman 2014) by creatively constructing the positive biopolitical subjectivity of the ‘Multitude’. Of interest to this discussion is their extended consideration of immaterial and social production, as well as the development of the concept of the ‘common’, notably as their writing evidences links with some of the literature discussed in previous parts of this article. 4.3.1. Immaterial labour Hardt and Negri view global informatisation forming a crucial paradigm shift and marking a break with modernity (2000). Τhe information era has been most prominently characterised by the rise of immaterial labour: labour that creates immaterial products, such as knowledge, information, communication, but also imagination, relationships, affection, and emotional response (2000, 2004). Under these terms, ‘immaterial’ production reaches beyond ‘intellectual labour’ (also in the sense of creativity and artistic works) to also include the social capital of social networks, personal connections, affective and digital labour (2017). However, immaterial production remains deeply material, as it involves brains and their bodies – like all forms of labour. Therefore, immaterial labour emerges as deeply biopolitical. At the same time, whereas material production provides the main means on which we build social life – cars, clothes, televisions but also computers, smartphones and so on – ‘immaterial production, including the production of ideas, images, knowledges, communication, cooperation, and affective relations,15 tends to create not the means of social life but social life itself’ (2004, 146). It is production that also delivers material goods, as well as relationships and, ultimately, social life. 4.3.2. The ‘common’ Hardt and Negri highlight that either at the sides of immaterial labour in the strict sense (employment) or mainly through our casual, common participation in such networks of communications and relationships, we are creating in common ‘the means of interaction, communication, and cooperation for production directly’ (2004, 147). There [o]ur common knowledge is the foundation of all new production of knowledge; linguistic community is the basis of all linguistic innovation; our existing affective relationships ground all production of affects; and our common social image bank makes possible the creation of new images. (2004, 148) This frames Hardt’s and Negri’s definition of the ‘common’, which integrates, next to physical natural environments and resources, ‘the languages we create, the social practices we establish, the modes of sociality that define our relationships and so on’ (2011, 139). Their notion of a common comprises the products of immaterial labour (which serve as the foundation for future creations, knowledge and ideas about living) as well as the processes of immaterial production themselves, due to their common, collaborative, and communicative character (2004). 4.3.3. The online biopolitical common Hardt’s and Negri’s common is distinguished by being placed within a re-envisioned biopolitical configuration, blending Marxist critical readings into socio-economic globalisation and understandings of the network(ed) society. We may bring the discussion’s main context under this scope of comprehension. Our time living within and across online settings, connecting with others, creating new knowledges and communication practices or building on the existing ones, generates in proportion with the numbers of interconnected populations a vast informational surplus, which is exploited in manifold ways. Our common interactions translate instantly into social network production, which includes online content and data – both traffic and personal. Informational surplus accrues from direct forms of original and derivative alike user-generated creative and generally cultural contributions (Lessig 2004, 2008; Jenkins 2006; Boyle 2008; Bruns 2008; Hayes 2008; Tushnet 2008; Jamar 2010; Fuchs 2015); from the indirect generation of content in the shape of communities coming together and taking form in shared social, cultural, knowledge exchange and even gaming spaces (Jenkins 2006; Benkler 2006); from ‘irregular, unpaid, precarious, outsourced, crowd-sourced, and click-worked digital labour’ on platforms, such as YouTube, LinkedIn and Pinterest, and through activities that include online reviews, surveys and improving online service performance (for example, reporting spam email) (Fuchs 2017, 71). Furthermore, Cohen (2017) discusses the non-stop production of a ‘biopolitical public domain’ of personal data, being harvested, refined and then distributed across data markets. Taking all this into consideration, there is a great deal of value deriving from endlessly flowing in information surplus, for the content industries (for example, promotion, appropriation of fandom, possible royalties); for the Internet media of all kinds and sizes (infrastructures, online services, content hosts, social media and so on); for corporations, benefiting from unpaid digital labour reducing their wage-sum to therefore increase profits (Fuchs 2017); and, of course, for advertisers. The Internet becomes a most illustrative example of what Hardt and Negri envisage when arguing that ‘labor and value have become biopolitical in the sense that living and producing tend to be indistinguishable’ (2004, 148). This we may take further, in relation to the network society, and analyse down into two different components. The first reflects on Foucault’s biopower and biopolitics conceptualisations. We have already discussed on various instances the connection between biological life and the online setting. The Internet context actualises the dispersal of power across the network; across uncountable infrastructures, knowledge structures, applications and online platforms. At the same time, the neoliberal shift is projected upon this context: states have important online presence and access to network infrastructure control, but the management and government (in Foucauldian terms) of everyday online life is mainly distributed across (and owned by) market forces and private entities. The network incorporates biopower in its (re)production of life; across the architecture of its operations and fundamentally within its makeup of computer code (Lessig 2006), it integrates norms, both social and regulatory, surveillance, optimisation and security mechanisms, in and through its various operations, controlling individuals towards a productive existence and thus forwarding the interconnected human species. Finally, it recreates the contours of political economy, where the horizon of productivity is realised through the production of life – in online terms: the production of information, by which life is otherwise sustained and organised. The second component comes closer to Hardt’s and Negri’s contemplations, in recognition of the link they make between the Internet’s biopolitical production and the common. They use communication as an example to denote how the common is produced and it also becomes productive, by suggesting that we ‘communicate only on the basis of languages, symbols, ideas, and relationships we share in common, and in turn the results of our communication are new common languages, symbols, ideas, and relationships’ (2004, 197). The common denotes a raw material that is ‘not consumed in production but actually increases with use’ (2004, 147). Yet, Hardt and Negri warn that, the same way production of value is understood in terms of the common, where the common has become the locus of surplus value, its exploitation equals to its expropriation. Exploitation denotes ‘private appropriation of part or all of the value that has been produced as common’ (2004, 150), even if that refers to relations or communications that are common by their nature, and results in turning what is common into private property and controlling it. Hardt and Negri also note that most often we focus on conflicts between the common and private property, yet it is equally important to keep the common conceptually separate from the public, suggesting the (negative) example of institutional arrangements aiming to regulate common knowledge and culture (2011).