Law and Information

According to Lyman and Varian’s How much Information 2003? study, print, film, magnetic and optical storage media produced roughly 5 exabytes of new information in 2002 (five exabytes of information is equivalent to the information contained in 37,000 new libraries the size of the Library of Congress book collections.) According to the study, almost 800 MB of recorded information is produced per person each year, equivalent to 30 feet of books if this information was stored on paper.

Moreover, the information society is developing rapidly. Rapid change, in turn, is accompanied by an increase in the information needed to keep up with those developments. Against this backdrop, it comes not as a surprise that “information overload” has been identified as one of the problems of our society. Psychologist use terms such as “information fatigue syndrome” to describe the symptoms resulting from information overload, while representatives of other disciplines focus on ways how to deal with it.

Information overload has been subject to various studies and research programs. Interestingly, however, legal scholarship – itself exposed to the information problem – has not been engaged in this debate. A prominent exception is Jean Nicolas Druey, Professor em. at the University of St. Gallen, Switzland. In a seminal book on “Information as a Subject of Law” (in German, “Information als Gegenstand des Rechts,” Schulthess: Zurich & Nomos: Baden-Baden, 1995) and in an article, he has addressed the phenomenon of information overload from a legal perspective.

Since it’s one of the purposes of this weblog to build a bridge between U.S. and European scholarship in information law, I decided to translate and summarize Druey’s study on information overload. The idea goes back to my colleague Derek Bambauer’s interest in Druey’s approach. Derek is working on a paper on Spam, where he applies an information-policy approach. I’d like to thank him for the ongoing discussion of this and other issues. In this post, I translate and summarize the discussion as presented in Druey’s book. In a next post, I will talk about the article, in which Druey explores the issue in depth.

Druey addresses the phenomenon of “information overload” (in German: “Ueberinformation”) in the context of a broader discussion aimed at demonstrating that information as such – contrary to the mainstream opinion that “more information is better” – does not have an intrinsically positive value. Rather, information is neutral in nature, since it can not only have a positive, but also a negative value, e.g. in case where information lacks quality, has an immoral purpose, or is redundant.

With regard to the third aspect, i.e. information overload (“Ueberinformation”), Druey claims that the problem “information overload” has not sufficiently been analyzed in the different areas of research. He argues that this lack of analysis goes back to the common information theory (Shannon, Weaver) approach to information, which conceptualizes “information overload” as a problem related to the “channel” rather than human beings.

Why is too much information a bad thing? In essence, Druey argues that “overproduction” and “oversupply” of information is a waste of resources. First, in the case of a priest who’s preaching in church without audience, for instance, we have the problem that information is presented at some costs without reaching receivers. Second, too much information is clogging our capacity to receive and process information. In both cases, the problem boils down to a suboptimal usage of potentially useful information on the one hand and unnecessary costs/expenses on the other hand. Third, and even more importantly, the increasing amount of information and data leads to an increasing risk that the wrong information is selected (“wrong selection of information”, p. 69). Druey argues that, consequently, the competition over the scarce resource “attention” (or better “attentiveness”) has a negative feedback-effect on the quality level of information itself (Druey uses the example that an overview of the literature in a particular field aimed to address the problem of “too much information – lost overview” itself contributes to the problem it seeks to solve by adding another piece of information.).

This problem of “wrong selection of information” has first and foremost a negative impact on decision making processes. A citizen, who has his head full of sport news and results, is not necessarily in a good shape to make political decisions (to vote, for instance.) This example, according to Druey, illustrates that the phenomenon “information overload” may not only affect the receiver in a negative manner, but may also have negative effects on other interests and stakeholders. In fact, “information overload” may also infringe the interests of senders in cases where an important/relevant information gets stuck in the blockage. Moreover, information overload may also affect “institutions” which heavily depend on the flow of relevant information (“the major communication problem is information overload”, quotes Druey a scholar in the field of organization theory [Everett M. Rogers/Rekha Agarwala, Communications in Organizations, New York 1976, p. 90]).

But too much information does not only harm information processes. In cases where information is used in order to “regulate” (in a broad sense of the term) certain social mechanisms and processes, “too much” might do harm. Druey refers to the “market” as an example. Total information would kill market dynamics. It’s about an optimum of information, not total information or complete transparency. At the same time, “non-information” may have a limited effect on the general activity level, which, in turn, might be the source of order. This thought is connected to the concept of equality. Equality has something to do with making issues more abstract, to abstract from detailed information (e.g. not to consider information about race, gender, …). The willingness to be governed under a particular regime heavily depends on “not-to-know” (Druey refers to Rawls’ “veils of ignorance”.)

Druey concludes (p. 70) that these examples and arguments suggest that information as such – regardless of the quality of a given piece of information – might be contra-productive from the viewpoint of a receiver. Further, Druey concludes that the discussion has demonstrated that the buzzword “information overload” has two aspects: a quantitative (“too much”), but also a qualitative aspect. The qualitative aspect becomes visible in the context of the above mentioned processes/procedures, which may require the retention of certain information. Druey argues in another chapter of a book that this need for “dosing information” in order to ensure certain processes/procedures is the reference point for certain forms of legal secrets (e.g. protection of trade secrets.)

On p. 135, Druey comes back to the issue of information overload when he discusses a “right against information” (in the sense of a “right not to receive information” as an aspect of informational freedom emerging.) He argues again that the harm of “too much information” is to be seen as the costs associated with the fact that a receiver cannot receive potentially relevant information because he is cognitively “clogged” with information that might not be at the core of his informational interests. Addressing the question of responsibility in the legal sense, Druey argues that the law has not yet been responsive. The threshold that triggers liability is extremely high in the case of information overload compared, for instance, to other cases of negative information (e.g. in the case of misadvise.) A basis for a claim might be seen in contractual obligations, but beyond that, law has not developed remedies to address the problem “information overload”. Thus, and that’s Druey’s conclusion, law has to refer to other solutions (regulatory modes) to regulate the problem. Since there might only exceptionally be an “individual right against information”, law must trust in the regulatory power of filters. Filtering functions are conducted by media, teachers, as well as interest groups, and the like. Druey emphasizes in footnote 16 on p. 137 that media –in the broad sense of the term, i.e. as “informational transformers” – are key to address the issue at stake. Media’s function, according to Druey, is to mix “fire” with “water”, i.e. to harmonize a subjective with an objective approach to (active and passive) information needs.

To be continued.