Review of Zuboff’s The Age of Surveillance Capitalism

Abstract

Surveillance Capitalism as Legal EntrepreneurshipThe Age of Surveillance Capitalism is both a descriptive tour de force and a theoretical triumph.Patiently culling from a variety of sources, including press releases and media exposes but also patents and disclosures to securities regulators, Shoshana Zuboff develops a richly detailed and deeply perceptive depiction of an activity that is at once a new business model, a new mode of extraction, and a new mode of knowledge production.She then offers a brilliant retheorization of data-driven, algorithmic commercial surveillance as instrumentarian power, or power that is agnostic as to ends and radically behaviorist as to means.The historical and conceptual distinctions she draws between instrumentarianism and totalitarianism are elegant solutions to a problem that has long bedeviled writers puzzling over how to name and understand the various forms of information power.In between, she develops an origin story for surveillance capitalism and a taxonomy of its methods. 1 When it comes to excavating the roles of law and legal institutions in the construction of surveillance capitalism, however, the book stumbles.As prelude to a brief review of a series of US legal developments that have facilitated surveillance capitalism's rise, Zuboff observes that because a principal modus operandi of surveillance capitalism involves brushing legal restrictions aside, surveillance capitalism is best characterized as an assertion of a right to lawless space (pp.103-04).The relationship between surveillance capitalism and law, however, is both far more complex and far more productive than either that characterization or Zuboff's subsequent analysis suggests.Like my own account of the legal constructions of informational capitalism (Cohen forthcoming 2019), Zuboff's account of surveillance capitalism is situated within a Polanyian theory of political economy, so

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