Yochai Benkler, The Wealth of Networks, Yale University Press, 2006.
The structure of our information environment is constitutive of our autonomy, not only functionally significant to it.
While the capacity to act free of constraints is most immediately and clearly changed by the networked information economy, information plays an even more foundational role in our very capacity to make and pursue life plans that can properly be called our own. A fundamental requirement of self-direction is the capacity to perceive the state of the world, to conceive of available options for action, to connect actions to consequences, to evaluate alternative outcomes, and to decide upon and pursue an action accordingly. Without these, no action, even if mechanically self-directed in the sense that my brain consciously directs my body to act, can be understood as autonomous in any normatively interesting sense.
All of the components of decision making prior to action, and those actions that are themselves communicative moves or require communication as a precondition to efficacy, are constituted by the information and communications environment we, as agents, occupy. Conditions that cause failures at any of these junctures, which place bottlenecks, failures of communication, or provide opportunities for manipulation by a gatekeeper in the information environment, create threats to the autonomy of individuals in that environment.
The shape of the information environment, and the distribution of power within it to control information flows to and from individuals, are, as we have seen, the contingent product of a combination of technology, economic behavior, social patterns, and institutional structure or law.
There are two primary types of effects that information law can have on personal autonomy.
The first type is concerned with the relative capacity of some people systematically to constrain the perceptions or shape the preferences of others. A law that systematically gives some people the power to control the options perceived by, or the preferences of, others, is a law that harms autonomy. Government regulation of the press and its propaganda that attempts to shape its subjects’ lives is a special case of this more general concern. This concern is in some measure quantitative, in the sense that a greater degree of control to which one is subject is a greater offense to autonomy. More fundamentally, a law that systematically makes one adult susceptible to the control of another offends the autonomy of the former.
Law has created the conditions for one person to act upon another as an object. This is the nonpragmatic offense to autonomy committed by abortion regulations upheld in Planned Parenthood v. Casey-such as requirements that women who seek abortions listen to lectures designed to dissuade them. These were justified by the plurality there, not by the claim that they did not impinge on a woman’s autonomy, but that the state’s interest in the potential life of a child trumps the autonomy of the pregnant woman.
The second type of effect that law can have on autonomy is to reduce significantly the range and variety of options open to people in society generally, or to certain classes of people. This is different from the concern with government intervention generally. It is not focused on whether the state prohibits these options, but only on whether the effect of the law is to remove options. It is less important whether this effect is through prohibition or through a set of predictable or observable behavioral adaptations among individuals and organizations that, as a practical matter, remove these options. I do not mean to argue for the imposition of restraints, in the name of autonomy, on any lawmaking that results in a removal of any single option, irrespective of the quantity and variety of options still open. Much of law does that. Rather, the autonomy concern is implicated by laws that systematically and significantly reduce the number, and more important, impoverish the variety, of options open to people in the society for which the law is passed.
“Number and variety” is intended to suggest two dimensions of effect on the options open to an individual. The first is quantitative. For an individual to author her own life, she must have a significant set of options from which to choose; otherwise, it is the choice set-or whoever, if anyone, made it so-and not the individual, that is governing her life. This quantitative dimension, however, does not mean that more choices are always better, from the individual’s perspective. It is sufficient that the individual have some adequate threshold level of options in order for him or her to exercise substantive self-authorship, rather than being authored by circumstances. Beyond that threshold level, additional options may affect one’s welfare and success as an autonomous agent, but they do not so constrain an individual’s choices as to make one not autonomous. Beyond quantitative adequacy, the options available to an individual must represent meaningfully different paths, not merely slight variations on a theme. Qualitatively, autonomy requires the availability of options in whose adoption or rejection the individual can practice critical reflection and life choices. In order to sustain the autonomy of a person born and raised in a culture with a set of socially embedded conventions about what a good life is, one would want a choice set that included at least some unconventional, non-mainstream, if you will, critical options. If all the options one has-even if, in a purely quantitative sense, they are “adequate”-are conventional or mainstream, then one loses an important dimension of self-creation. The point is not that to be truly autonomous one necessarily must be unconventional. Rather, if self-governance for an individual consists in critical reflection and re-creation by making choices over the course of his life, then some of the options open must be different from what he would choose simply by drifting through life, adopting a life plan for no reason other than that it is accepted by most others. A person who chooses a conventional life in the presence of the option to live otherwise makes that conventional life his or her own in a way that a person who lives a conventional life without knowing about alternatives does not.
As long as our autonomy analysis of information law is sensitive to these two effects on information flow to, from, and among individuals and organizations in the regulated society, it need not conflict with the concerns of those who adopt the formal conception of autonomy. It calls for no therapeutic agenda to educate adults in a wide range of options. It calls for no one to sit in front of educational programs. It merely focuses on two core effects that law can have through the way it structures the relationships among people with regard to the information environment they occupy. If a law-passed for any reason that may or may not be related to autonomy concerns-creates systematic shifts of power among groups in society, so that some have a greater ability to shape the perceptions of others with regard to available options, consequences of action, or the value of preferences, then that law is suspect from an autonomy perspective. It makes the choices of some people less their own and more subject to manipulation by those to whom the law gives the power to control perceptions. Furthermore, a law that systematically and severely limits the range of options known to individuals is one that imposes a normative price, in terms of autonomy, for whatever value it is intended to deliver. As long as the focus of autonomy as an institutional design desideratum is on securing the best possible information flow to the individual, the designer of the legal structure need not assume that individuals are not autonomous, or have failures of autonomy, in order to serve autonomy. All the designer need assume is that individuals will not act in order to optimize the autonomy of their neighbors. Law then responds by avoiding institutional designs that facilitate the capacity of some groups of individuals to act on others in ways that are systematically at the expense of the ability of those others to control their own lives, and by implementing policies that predictably diversify the set of options that all individuals are able to see as open to them.