From Snake Oil to Silicon
From Snake Oil to Silicon: A Modest Case for Regulation
To begin, I must state up front that I am (gratefully) in the position of an amateur here, so I won’t represent myself as an expert, certainly not in any areas of law. This hopefully gives me some freedom to explore a topic without having to stay within many boundaries as I do so. A possible disadvantage is that what I discover won’t be taken very seriously—but as I think we might all agree by the end of my time, there may not be much danger of that anyway. As it happens my grandfather Marshall McLuhan has a few words I can employ in defense of this position:
It was during World War II that Operations Research hit upon the strategy of pulling specialists out of their fields. A weapons problem was handed right off to biologists and psychologists, instead of to engineers and physicists. Because it was found that specialists inevitably directed their acquired knowledge at a problem. The non-specialist, knowing nothing of the difficulties involved, could only ask: ‘what would I have to know in order to make sense of this situation?’ In a word, he organized his ignorance, not his knowledge. The result was many breakthroughs and solutions that otherwise would not have happened. In retrospect the discoveries seemed obvious. It is not because the beclouding assumptions and unconscious bias from earlier and irrelevant training have disappeared?1
Law is a wonderful thing, when it works. As far as innovations go, it is quite impressive in its complexity and refinement. Many people have spent a lot of time, effort, and money tweaking every little minuscule component, the finest Swiss watch is a comparatively minor thing next to the great legal systems of history and of our own time. The Law, when in place and set to a task, is a force to be reckoned with. There is a truly impressive weight, momentum, and inevitability which one encounters at one’s own risk. With the right impetus, events can be set in motion which have enormous consequences for individuals and societies. In my preparation for this address, my research produced fascinating examples from fairly recent history which proved the great power of law, a power that seems indifferent in itself. Law is an instrument which can be used to consolidate and grow the power and wealth of the most privileged among us, and it can be used as sword and shield to protect the most vulnerable among us.
From Snake Oil to Silicon: Meat
It is curious how things come about. In 1906, an American journalist named Upton Sinclair published a book called The Jungle.2 The book highlighted the poor working conditions and quality of life experienced by immigrants and was apparently written to advance Sinclair’s socialist agenda. However, what seized the public imagination were passages about unsanitary conditions in meat packing plants of the day, which led to a sizable public outcry. Sinclair is quoted as saying “I aimed at the public’s heart, and by accident I hit it in the stomach.”3 That same year, 1906, the Pure Food and Drug Act was passed by Congress and signed into law by President Roosevelt. The Pure Food and Drug Act was also known as “the Wiley act” after Dr. Harvey Wiley who had been a leader in the creation of the act, and who became the first director of the Food and Drug Administration (FDA), created to enforce the 1938 “Food, Drug, and Cosmetic Act.” The 1938 Act was precipitated by a mass poisoning in 1937 which caused the deaths of over 100 people in the United States. The disaster was caused by Harold Watkins, chief pharmacist and chemist of the S. E. Massengill Company. He created a preparation of sulfanilamide using diethylene glycol (DEG) as a solvent, called it Elixir Sulfanilamide, and bottled it.
The solvent he used was known to be problematic, but not by him. He dissolved the sulfanilamide in DEG, added some raspberry flavour, and the company marketed and sold the product. At that time there were no regulations for premarket testing of new drugs. The owner of Massengill is quoted as saying in his defense “We have been supplying a legitimate professional demand and not once could have foreseen the unlooked-for results. I do not feel there was any responsibility on our part.”4 Sadly, Harold Watkins, Massengill’s chief pharmacist and chemist is reported to have committed suicide while awaiting trial. It is from that disaster and other similar incidents that we have the USFDA, whose job it was and is to enforce the Pure Food and Drug Act. Today, manufacturers have to prove the safety and efficacy of substances prior to their marketing and sale, a process which can take years. Do you suppose drug manufacturers were thrilled to have regulations imposed on them? Do you suppose they might rather speed up the process and get their products to market faster, before the competition and with considerably reduced expense? The 1906 Pure Food and Drug Act and the 1938 Food Drug and Cosmetic Act met with considerable resistance. I found reference to a “muckraker” Samuel Hopkins Adams. “Muckrakers” were early investigative journalists. Adams set his sights on “patent medicines” of dubious efficacy and so-called “red clauses” in newspaper contracts which made it so patent medicine ads, which were a major source of revenue for newspapers in the early 20th century, would be pulled if the paper expressed support for food and drug regulatory legislation.
It’s a familiar story. It is somewhat of a paradox that when we look at the case for regulation of technologies that things are both overt and subtle. Causation, when it comes to media, is a slippery and non-linear thing. It’s not as simple as a hundred deaths which can be fairly easily attributed to an elixir. But neither is it quite so esoteric as Chaos Theory and the Butterfly Effect. People and societies are changing, lives are affected in profound ways and people are dying as a result, but we are unable or unwilling to rally around the cause—and we can be sure that nothing substantive will happen without an enormous public outcry. Looking at the history of big pharma and drug manufacturing, and what it takes to get regulations in place, it’s a minor miracle the FDA exists at all and is actually effective.
From Snake Oil to Silicon: Media Ecology
There is a field of study which you may not be aware of, known as Media Ecology. It is popularly defined as “the study of media as environments,” and there is even a Media Ecology Association (based mostly in the US) which has a significant membership, a journal, and an annual convention. Shortly after publishing Understanding Media: The Extensions of Man in 1964, Marshall McLuhan moved into environmental and ecological considerations of technology. In his 1965 essay “The Relation of Environment to Anti-Environment,” he states:
Any new technology, any extension or amplification of human faculties when given material embodiment, tends to create a new environment. This is as true of clothing as of speech, or script, or wheel.5
Media ecology is about as close as we get to approaching scientific language when it comes to the study of the effects of technologies. Perhaps this is part of why it seems to not be taken very seriously—I would suggest that were it actually taken seriously we would have legislation by now. We don’t. A few years ago, I looked into the matter. In the spirit of Marshall McLuhan’s “probes” I crafted a statement and decided to explore it. I posited that: “There is no difference between environmental science and media study.” I compared the work of Marshall McLuhan and Rachel Carson as there was some interesting commonalities and divergences to be found. Here are some of the highlights, according to Wikipedia:
Environmental science is an interdisciplinary academic field that integrates physical, biological and information sciences (including ecology, biology, physics, chemistry, zoology, mineralogy, oceanology, limnology, soil science, geology, atmospheric sciences, and geodesy) to the study of the environment, and the solution of environmental problems.6
Rachel Carson wrote a book which was at the forefront of this movement, Silent Spring (1962), and it blew the lid of the effects of pesticides and other chemicals used in agricultural and other applications. Her work brought a new environmental awareness to the American public, but it also garnered a severe backlash from the corporations who manufactured and used chemicals like DDT, which was an amazing pesticide to help control mosquitoes and prevent malaria and typhus but is carcinogenic and almost wiped out Bald Eagles and other birds. Most importantly, Carson’s ground-breaking work led to the creation of the Environmental Protection Agency in the United States of America, new environmental policies, and a ban on DDT. As shown in Wikipedia, Environmental Science is established as a discipline. It is very clear what it is and where it came from. Media Study, not so much. A short time browsing among the related topics will show its opaque nature.
At around the same time that Rachel Carson was studying the effects of pesticides on the natural world, Marshall McLuhan was studying the effects of technology on people and cultures and was moving into his ecological approach. Marshall McLuhan delivered his Report on Understanding New Media in 1960. It was commissioned by the National Association of Educational Broadcasters (NAEB) and the US Department of Education and was meant to be a secondary syllabus for use in Grade 11 classes. Two years later, the same year McLuhan published The Gutenberg Galaxy: The Making of Typographic Man, Rachel Carson published The Silent Spring. With the NAEB “report” was another text, “Project in Understanding New Media: Sample of Syllabus” where Marshall writes in the section on Printing: “It seems to be inadvisable to approach print in a merely chronological fashion.”7 In 1964 he published Understanding Media: The Extensions of Man, which was essentially a reworking of the NAEB Report into a different style, aimed at a different audience.
Understanding Media was, and remains, Marshall McLuhan’s major work on the subject of media study—“major” in terms of public reach anyway. The book caused as much stir as it did confusion, and it earned him much backlash as well. Silent Spring and Understanding Media are comparable in that they both had considerable impact on their release, earning their authors accolades and enemies, and both were addressing environmental concerns. However, where Carson was concerned with the state of the natural environment and humanity’s detrimental effect on it, McLuhan was concerned with the effects of technologies in creating, and resulting from, an artificial ecosystem or environment of effects, services and disservices. McLuhan’s concern was the “personal and social consequences of any new medium…that is introduced into our affairs…by any new technology.”8 Further to this point, McLuhan notes:
It is the medium that shapes and controls the scale and form of human association and action. The content or uses of such media are as diverse as they are ineffectual in shaping the form of human association. Indeed, it is all too typical that the “content” of any medium blinds us to the character of the medium.9
While Carson’s work led quickly to the creation of the EPA as well as legislation to protect the natural environment, Marshall McLuhan’s work (as well as the work of others in related fields) has yet to lead to a comparable governmental agency or legislation to protect people from undesirable effects of technologies, let alone the channels of communication we tend to refer to casually as “media.”
From Snake Oil to Silicon: Conclusion
There isn’t nearly enough time today for me to dive as deeply as I’d like into this subject—to do more research into the histories of various types of regulations, to quote and elaborate on the many contributions McLuhan work makes in support of the overall case for regulation of technology—but there is enough time to make at least a modest beginning to a compelling case for a real start to regulating technologies.
When it comes to technology, why is our concept of what constitutes harm limited to the most superficial effects while largely ignoring the larger sensory, psychological, and social?
Why do we thoroughly study and regulate drugs for safety and efficacy but not technologies?
What might safety and efficacy even mean in terms of technologies?
Why will we recognize the ill effects of chemical substances like DDT on the natural environment, and mobilize to make changes, forcing large companies to comply with standards, yet when it comes to the quite profound personal and social consequences of technologies such as internet-enabled smartphones, the prospect of a giant leap with 5G and Quantum computing, all we imagine are the benefits that massive increases of speed and access will bring, and not the very existential changes sure to occur which will be apparent a few years down the road when we pine for good old 2019 when life was so much simpler?
To me, these are important questions. We are literally talking (or not talking) about the shaping of people and civilizations. A re-evaluation of the meaning of words like “benefit” and “progress” is desperately needed. We seem to have all but lost the ability and desire to think of the future, to consider long-term impacts, have long-term goals, and I suggest we should attempt to rediscover those abilities. Possibly the most important question to focus our shrinking attention on is that of our reluctance. The idea that technologies are as drugs, mind-altering substances, has been around a while now, yet we don’t seem willing to treat them as such. Why not? What if we did?
Study upon study have shown and book upon book have demonstrated the incredible power of our technologies to shape societies and ourselves—our minds, our senses, our perceptions, our relationships, our actions—it has been quite a long time since Marshall McLuhan stated in Vancouver in 1958 that “the medium is the message,” and still no fruitful effort has been made to regulate technologies.
Social media companies quite openly and obviously optimize their products to attract and capture our attention and increase their profits while all we do is consume—eat it up. McLuhan employed T.S. Eliot in Understanding Media: The Extensions of Man, when he wrote: “content is the juicy piece of meat used by the burglar to distract the watchdog of the mind.”10 In this case, the burglars are wreaking havoc with our nervous systems, profoundly changing our politics and societies: robbing us blind. What will it take? In 2018, in “Media Ecology in the 21st Century,” my father Eric McLuhan’s last speech and strongest statement on the subject, a speech which inspired my words today, he said:
Those engaged in teaching ‘media literacy’ and other media-training causes are actually in the business of peddling toxic and addictive things to näive new users, addicts-to-be. They are de-facto unacknowledged extensions of the marketing arms of the manufacturers of the technologies.11
Fear is usually a great motivator for action but apparently fear is not enough. Enough people seem to be afraid of the prospect of things like the “Singularity,” of the growing power and reach of surveillance states, of the current bad and worsening social and political situation—and for the first time in history it is plain enough for most people to notice and remark on the most obvious causes (if not the less obvious ones). All of this and still no meaningful result—and no, simple things like mindfulness and media diets on Sundays won’t bring about meaningful change. As W.H. Auden said to Marshall McLuhan in conversation in 1971, “I don’t have a TV, and wouldn’t dream of owning one!”12 To which Marshall replied, “You merely suffer the consequences of TV without enjoying it.”13 Marshall McLuhan’s entire career could be said to have been devoted to waking us up to our situation, to the consequences of our technological actions, to the fact that we are the unwitting products of technological environments of our own creation. I think Marshall would be gratified that so many today seem awake—but disappointed to find that now it’s us, not the burglar, feeding Eliot’s watchdog, even though he saw the shift from consumer to producer. As he wrote at the conclusion of his 1965 essay “The Relation of Environment to Anti-Environment,” “We have no reason to be grateful to those who juggle the [sensory] thresholds in the name of haphazard innovation.”14 It’s hardly haphazard at this point.
Change is happening and much greater change is coming with 5G and Quantum computing here and ready to roll out. What we need, if we want any agency at all in our present and future, is the courage to act—because while I don’t believe that the many people involved in shaping the technologies which shape us are evil, I also don’t believe many of them have our best interests at heart. As long as there is a free hand to innovate and release into the world such powerful, life-altering technologies without any real oversight, they will continue to do so with little regard to consequences other than monetary gain.
Those who framed the American constitution, setting processes such as the passage of a bill into law; those who founded the FDA and set processes in place to test the safety and efficacy of drugs, knew what they were about. These things were not designed simply to frustrate and annoy and be the enemy of progress—but they are certainly designed to do something we can hardly today tolerate: slow things down, the specific object being not to deny progress but to aid it. Two of our great challenges, if not our enemies, are speed and acceleration—or perhaps care and control and the judicious employment of them.
I am not a luddite. I am not against technology. I am not against progress. I am for smart innovation, and I am for smart regulation.
University of Windsor
October 25, 2019
An address to the University of Windsor Law Faculty, October 25th 2019.