In a remarkable passage, Judge Chen compared Uber’s power to that of the guards at the center of the Panopticon, which Foucault famously analyzed in Discipline and Punish. The Panopticon was a design for a circular prison building dreamed up in the eighteenth century by the philosopher Jeremy Bentham. The idea was to empower a solitary guard in the center of the building to watch over a large number of inmates, not because he was actually able to see them all at once, but because the design kept any prisoner from knowing who was being observed at any given moment. Foucault analyzed the nature and working of power in the Panopticon, and the judge found it analogous to Uber’s. He quoted a line about the “state of conscious and permanent visibility that assures the automatic functioning of power.” The judge was suggesting that the various ways in which Uber monitored, tracked, controlled, and gave feedback on the service of its drivers amounted to the “functioning of power,” even if the familiar trappings of power—ownership of assets, control over an employee’s time—were missing. The drivers weren’t like factory workers employed and regimented by a plant, yet they weren’t independent contractors who could do whatever they pleased. They could be fired for small infractions. That is power.
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