In a congressional hearing over seven years ago, Senator Orrin Hatch asked CEO Mark Zuckerberg a simple question: how did his company, then known as Facebook, make money if users never paid them a dime? Zuckerberg’s brief, smirking answer immediately went viral: “Senator, we run ads.” The exchange seemed to encapsulate both the generational divide between the 84-year-old Hatch and the 33-year-old Zuckerberg and their fundamentally different understandings of how capitalism worked on the ground. That Hatch needed something as basic as the Facebook business model spelled out for him suggested, to some, that he was out of touch.
But Zuckerberg’s deceptively straightforward reply also warrants unpacking, because—as is by now obvious—Meta does far more than simply sell advertising. In The Ordinal Society, sociologists Marion Fourcade and Kieran Healy argue that firms like Meta have remade society and sociality itself. By transforming social activity into a source of profit, firms have gained the ability to control and manipulate interactions and to rank and sort individuals in increasingly precise ways. An ambitious account in the vein of Julie Cohen’s Between Truth and Power, The Ordinal Society offers a crucial rethinking of how technology has reordered society, focusing on how the data economy enables emerging systems of ranking and classification that not only amplify underlying social stratification, but also produce new and unpredictable forms of inequality. Existing legal approaches fail to address the harms wrought by this reordering.
What can legal scholars gain by reading about the social and political effects of technology? For one thing, looking at informational capitalism through Fourcade and Healy’s lens blows the dust off some of the oldest debates in law and technology. For example, consider the lengthy privacy policies offered by technology platforms that set forth the terms of the bargain between users and the firm. Legal scholars have long argued about the insufficiency of privacy policies to actually inform consumers and ensure meaningful user consent to the disclosure of data. But as Fourcade and Healy point out, users don’t simply share existing information when they interact with digital services: they also generate new data. Interaction between users and platforms creates what Shoshana Zuboff describes as the “behavioral surplus,” a new source of inferences and profit.
As scholars of law and tech well know, the behavioral surplus has allowed tech platforms to wreak havoc on privacy and act in anticompetitive ways. But Fourcade and Healy point out that engagement with digital platforms has also transformed the way we relate to each other. The centrality of tech to everyday interaction makes people willing to “surrender” their data and alters our expectations of confidentiality, privacy, and autonomy. These shifts in social relations make it a challenge to map old legal presumptions onto the status quo.
The book contains at least two crucial insights relevant to legal scholars who study the impact of automation and algorithms. First, Fourcade and Healy argue that the use of modern methods of machine learning does not just replicate existing categories such as race, sex, or gender, but also creates new ones: “they identify new classes of people, reformat identities, help control social action, and produce new criteria for truth-telling and ethical judgment.” In Fourcade and Healy’s account, technologies of data collection and automated decision systems aim at making ever more granular, predictive, and individualized assessments of users, based on an ever-increasing set of data points. This system of assessment allows the classification, sorting, and—ultimately—ranking of individuals in ways that shape our access to life chances: credit, housing, work, punishment, benefits, and so forth.
This recognition of the fine-grained ranking and sorting made achievable through technology complicates how legal scholars think about algorithms. As Fourcade and Healy acknowledge, lawyers, computer scientists and social scientists have argued that automated and algorithmic decisionmaking might “contribute to the reproduction of categorical inequalities around gender and race.” As legal scholar Aziz Huq has argued, public law offers partial responses to this problem through doctrines of equal protection and due process. The former bars intentional discrimination and racial classification; the latter protects interests in the accuracy and appealability of decisions. But as Fourcade and Healy point out, “[d]eep-learning models might classify based on weighted combinations and transformations of hundreds or thousands of features, leaving users with little idea which conventionally identifiable features are really important.” Moreover, even as categorical inequality is reproduced on a grand scale, that reproduction is achieved through increasingly individualized and fine-grained determinations rather than through mechanisms recognizable through doctrines that bar classification on the basis of immutable characteristics or other impermissible criteria.
Fourcade and Healy describe the implications of this increasingly individualized mode of seeing and assessing people for citizenship and rights. In their telling, much of the 20th-century liberal order was oriented toward the recognition of individuals as “nominally equal.” The legal architecture for that order rested on the insistence that people be treated as individuals, not simply as members of groups or classes. The rise of individualization and personalized scoring might therefore appear more consistent with liberal commitments to individualism than the kinds of blunt categorizations that tend to run afoul of antidiscrimination law.
But as Fourcade and Healy point out, the rise of relentless classification and individualized scoring also erodes the very categories of social and political inclusion and exclusion that our legal system was made for. For example, they contend that pervasive ranking and classification undermine solidarity within and among the kinds of groups that made up the liberal “mass politics” of the 20th century. Instead, individuals increasingly are classified on the basis of data points and decisions that represent opportunities to be gained and gamed. To the extent antidiscrimination law responds to a distinctively 20th century harm—the harm of being lumped together with others, rather than treated as an individual—it is an imperfect fit with the kinds of individualized determinations that Fourcade and Healy are concerned with. Yet, as Fourcade and Healy note, the ranking and classification they study reproduce some of the precise forms of social inequality that supposedly individualized, merit-based decisions ought to avoid.
One of the book’s most significant insights is about the effects of algorithms on what Fourcade and Healy call the “whole social process” itself. Fourcade and Healy tie the emergence of platforms and the monitoring of online activity to the routine surveillance of offline activity, as companies like Google and Amazon launched payment systems, grocery stores, medical services, and other kinds of business. Pervasive surveillance of this kind enables platforms to act in increasingly self-serving ways, by eroding competition and engaging in price discrimination. The appetite for data that Fourcade and Healy document also translates to other kinds of firms and contexts: education, employment, and government, to name a handful.
Fourcade and Healy thus describe a wholesale shift in how people, relationships, and interactions are measured and understood. This change means that legal prescriptions geared toward particular firms (e.g., Google) or particular harms (e.g., bias in employment) may end up less potent than legal scholars anticipate, because they fail to address the larger transformations that society has undergone. Fourcade and Healy may not offer concrete legal tools to address the potential harms that arise from an ordinal society. But they develop and advance a generative new critical vocabulary for thinking about the economic, political, and social changes underway.
