Man-Chung, Chiu --- "Un/Desiring Freedom to Data: Deinformationising Human Subjects" [2020] JCULawRw 6; (2020) 26 James Cook University Law Review 57

A Consultation Paper on Freedom of Information, proposed by the Hong Kong Law Reform Commission, was released in 2018. Although the project aims at producing a Right to Information, further entrenching Freedom of Speech, enhancing the accountability and transparency of public authorities, and encouraging public participation in social governance and self-determination in Hong Kong, it could only further submit individuals to public control by human digitalisation. Only by refusing to informatise subjectivities, can people return to themselves and substantiate justice, as advocated by the Law Reform Commission.

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On 6 December 2018, the Hong Kong Law Reform Commission issued a ‘Consultation Paper: Access to Information’ (‘Consultation Paper’ hereafter), in response to two investigations (in 2010 and 2014) by the Hong Kong Ombudsman,^[1] where a series of suggestions were made to improve the current local Access to Information regime. The Consultation Paper made 14 recommendations, including: (1) The future Freedom of Information Law (‘FOI Law’ hereafter) should require public authorities to disclose information unless it is subject to an exemption (Recommendation 4); and (2) There should be two categories of exemptions – absolute (12 in total) and qualified (11) (Recommendations 7, 8 and 9). The Commission did not recommend the establishment of particular judicial institutions or organizations (for example, an Information Commission) to handle disputes related to the future law.^[2]

Absolute Exemptions	Qualified Exemption
Information accessible to applicants by other means	Damage to the Environment
Court Records	Management of the economy
Legislative Council Privilege	Management and operation of the public service, and audit functions
Information provided in confidence	Internal discussion and advice
Prohibitions on disclosure	Public employment and public appointments
Defence and security	Improper gain or improper advantage
Inter-governmental affairs	Research, statistics and analysis
Nationality, immigration and consular matters	Business affairs
Law enforcement, legal and relevant proceedings	Premature requests
Legal professional privilege	Conferring of honours
Executive Council’s proceedings	Health and safety
Privacy of the Individual

Although it is not stated or elaborated on great detail in the Consultation Paper, the proposed FOI Law is clearly aimed at guaranteeing the right to seek and receive information.^[3] The benefits of protecting this right, as argued by numerous academics and accepted by overseas courts, are: reducing the censorship capacity of public authorities (government being one of them),^[4] and entrenching the rule of law and a ‘healthy democracy’ because, once human subjects are empowered by having access to more information, they can be politically educated.^[5] See, for example,

Information is the key to sound decision-making, to accountability and development; it underpins democracy and assists in combatting poverty, oppression, corruption, prejudice and inefficiency. Administrators, judges, arbitrators, and persons conducting inquiries and investigations depend on it, likewise the press, NGOs and individuals concerned to report on issues of public interest. Unwillingness to disclose information may arise through habits of secrecy or reasons of self-protection (per Lord Mance JSC, Kennedy v Information Commissioner [2015] AC 455, 488).

The right of access to information was an autonomous right aimed at enhancing transparency and good governance and was not simply auxiliary to the right to freedom of information. (Magyar Helsinki Bizottság v Hungary Application No. 18030/11, para 73):

Citizens are best able to give officials direction when they are educated about what government is doing, and they understand government function completely.^[6]

Apart from being conducive to public participation in public governance, as argued by Svärd, the right to seek and receive information also makes governments more transparent and accountable to the people.^[7] The concept of self-determination can also be articulated only if human subjects are equipped with more information.^[8] Freedom of information, in short, motivates the authorities to make information available to individual human subjects.^[9] This right inevitably leads to the very complex question: who is the owner of the information and data?^[10] Is the ownership of data equivalent to power to control? Or, more critically, is there any data ownership in the era of Big/Open Data? The question therefore is: assuming that there are adequate financial resources to support the full exercise of freedom of information; and both the politicians and related officials respect this right (after being well trained),^[11] is the formula ‘Right to get access to (and control) information = Empowerment’ naturally valid? In the following section, the issue will be investigated from the philosophical perspectives constructed by Deleuze, Žižek and Daoism respectively.

Deleuzeans contend that capitalism, through the internet, globalisation and commodification, dismantles the essentiality of national/jurisdictional borders and citizenship. It attaches and connects desire with specific areas of law and society, for example, linking reproduction with sexual activities and opposite-sex marriage (ie re/territorialisation). As Rosenstock argues:

Technocapital is flowing at hyperspeed and is primed to grab onto our drives and pull us toward capitalistic integration into the will of the Other ...^[12]

The reason and logic are straightforward: capitalism needs a stable and steady social network so it can accelerate and smooth the flow of capital (including human resources). One of the most efficient ways to achieve that aim is to make the (digital) re-codification of human subjects compulsory and essential. According to Agamben, reduction of human subjects to a ‘bare life’ (ie information, data, figures and tables), is the ultimate end result of Euro-American modernity and advanced capitalism.^[13] Or, in the words of Foucault, human subjectivity is reconstructed and represented in the discourse of internetisation and digitalisation.^[14]

In other words, capitalism, in the age of globalisation and internetisation, operates on a temporary yet non-stop re/de/coding of desire and (human) subjects.^[15] With the assistance of technology, digitalised codification is becoming accessible and complete. Through re/territorialisation, substances and human subjects can be re/codified and reduced to commodities and data, and the surplus value will then become capital accumulation and surplus profit.^[16] Human subjects, after being digitalised, are caught and reproduced in endless and boundless circulation, managed by the market economy, over which they do not have any control.^[17] Human subjects, put simply, are being reduced to different data or information (for example, file numbers and passwords) under knowledge management, stratified by molar line (an established social machine and power), and is submitted to endless disciplinary institutions of control. In such a matrix of control, human individual, as Deleuze argues, is becoming ‘dividuals’, commodities or market data.^[18] In this machine of re/territorialisation of data, human subjects are defined and organized with reference to a hierarchal matheme of consciousness, rationality and self-regulation (via control of digitalised data).^[19]

Nonetheless, re/territorialisation can never be complete, as deterritorialisation, fueled by multiple desires (which then creates affect and thus action; ie the lines of flight), invariably happens at the same time. Moreover, becoming (including human subjects becoming data becoming dividuals) invariably contains contradictions and oppositions.^[20] Lines of flight tend to challenge and break the existing territorialised and stratified domination under capitalism:^[21]

When desire is present, however, it exists as a process that changes the connections and social relations of society, transgressing all fixed boundaries. Desire is revolutionary in essence, not because it wants revolution, nor because it may be provocative to express liberated sexuality, but because it affects and changes every established order of society.^[22]

Deterritorialisation, according to Deleuze (and Guattari), can therefore produce a social space where immanent relations, which ‘instead of acting out roles given to them by some real or imaginary third party in the role of a transcendent scriptwriter, are capable of shaping, affecting, and changing any mediating factors just as easily as these can shape the relations’, are manufactured.^[23] The discussion of the FOI Law in Hong Kong is an illustration of deterritorialisation, attempting to disconnect the existing data-making machine and machine of social control (including public governance), and creating the right to seek/control information.

Deterritorialisation nevertheless makes re/decoding possible. Although capitalism, itself a stream of money and property, understands very well that differentiation and proliferation of desire can help manufacture multiple options in the consumer market, it repeatedly attempts to codify all sort of desires under the veil of market economy, in order to make human subjects keep coming back and asking for more.^[24] Legal reterritorialisation invariably happens when ideas constructed by deterritorialisation are becoming perceptible through legislative procedure, or succumbing to the legal profession and judiciary, and becoming part of the authoritative law machine. As a consequence, a loop of ‘territorialisation → deterritorialisation → reterritorialisation → deterritorialisation’ is created, in which non-stop repetition re-generates and reproduces the schizophrenia of subjects.^[25] Reterritorialisation, in this context, can manufacture different machines and assemblages so as to substantiate and actualise the concepts and recode the desire.^[26] The exercise of desire is never a free flow, but is influenced by the existing molar force.

Not only can we understand why the Consultation Paper suggests a list of exemptions (an example showing the attempt of reterritorialisation), we also cannot expect a major leap forward in improvement to public participation in policy making and administrative transparency, as indicated in the overseas research. It would be unrealistic to imagine that enactment of a FOI Law would mean the complete release of all information (excluding the proposed exemptions).^[27] Even if freedom and related rights are extended, it does not mean that human subjects will be becoming more self-determined and thus can participate more in policy formation, and that society will become more transparent and accountable. Fountain points out the desire to upload all USA Government information onto the internet has led to an unexpected overload of information.^[28] This does not merely indicate that human subjects are still not able to handle the mass volume of information, it also means that human subjects cannot escape from the control laced with the non-stop regeneration of new data, conducted by public (and private) institutions.^[29]

Although unruly desire which initiates and motivates deterritorialisation cannot be directed and pre-programmed intentionally, pragmatic strategies that are open-ended and diversified need to be developed and designed so as to orchestrate (not programme) desire and related energy, otherwise transformation cannot be engineered and desired goals will never be accomplished.^[30] In order to realise transparency, accountability, and self-determination, we have to devise a different strategy, one which bridges and links the ideas created by desire and decoded by deterritorialisation with the machine constructed by reterritorialisation. The question then becomes: if a FOI Law cannot be an efficient way to resist digital re/territorialisation of human subjects, what can be further done for us to escape from the globalised internetisation and create new identities and becomings? Shall human subjects, instead of seeking more data and information, manufacture a new culture and connection to internet technology so as to ward off the over-coding of themselves?

But when we reflect on the processing capabilities of networked digital machines, issues arise of how we are constituted through and by such systems, how we are written by them and what they do with and to us.^[31]

If the assumption that human subjects can be empowered by owning more data and thus participate more effectively in public administration is revoked and debunked, should we investigate whether deterritorialising the connection between the data re-generation machine and the constitution of human subjectivity (not the deterritorialisation brought by the proposed FOI law) can genuinely enhance the self-determination of human subjects (one of the objectives of enacting the FOI Law)? In other words, should human subjects proactively withdraw from the data generation machine? Can the desires to disconnect the digitalisation of human subjects and respect of idiosyncratic individuality manufacture innovative lines of flight? The right to be forgotten is certainly an example, but it is not a complete erasure of digitalised footprints.^[32] Deinformatisation – the first step of which is the right to refuse further digitalising / codifying of oneself – is the strategy in which human subjects can reconstitute autonomy. The purposes are to allow human subjects to proactively refuse being codified as a set of data in the matrix of Big/Open Data; and, instruct all service providers and public authorities to completely delete any data and related footprints^[33] when they are being instructed by the human subjects involved. A policy of deinformatisation should also allow and support citizens to choose not to be digitalised and commodified.

The question which underlies the debate about the proposed FOI Law, nonetheless, remains unsolved: why do people always assume that FOI Law can effectively promote transparency and accountability of public authorities, and public participation in policy making and self-determination? According to Žižekians, the answer lies in the Fantasy machine, which acts as a gluing lubricant that attempts to harmonise the friction within the Symbolic Order, and between the Real and human subject.

According to Žižek, a human subject is constituted by the big Other of the Symbolic Order (ie Desire),^[34] which is driven by Fantasy – a never ending series of expectations and customs (for example, transparent governance, accountable administration and protection of privacy)^[35] and jouissance (ie the instruction to ‘challenge’ the current socio-legal order).^[36] The dilemma is: when a symbolic self is trying very hard to fulfil a desire, s/he does not exactly know what s/he desires - as object a (source of human desire) is an unstable enigma. This explains why human subjects can never completely exhaust and accurately understand what they want and need. As Žižek wrote:

What I desire is predetermined by the big Other ... Even when my desires are transgressive, even when they violate social norms, this very transgression relies on what it transgresses...

Not only does the other address me with enigmatic desire, it also confronts me with the fact I myself do not know what I really desire, with the enigma of my own desire.^[37]

Put simply, in the FOI politics of Hong Kong, Fantasy engineers (1) the strict requirement of absolute obedience of the right/freedom to information and (2) the imagination of better public governance/self-determination. This means that people are ‘instructed’ to observe the two principles, no matter whether a person really desires to fulfil the proposed goals of the FOI Law, or whether such desire can create pleasure initially (enjoying the freedom and constituting more efficient governance/improved self-determination, etc.), and be transformed into a painful experience at the end (identifying accurately a right piece of information is not easy and withholding information with public support to guarantee smooth and effective governance is too heavy a burden to bear).

So, even when a piece of law that promises freedom of information, and promotes accountability and transparency and public participation and self-determination (promises made by a Fantasy) is enacted, human subjects should understand that the proposed aims of the law – in the context of this article – more transparency, accountability, participation in social policy formation and, finally, self-determination – are only part of a Fantasy. The law is simply a masquerade covering up the reterritorialisation of the desire to seek information/data with a data re-generation machine. Also, fantasised aims cannot simply be achieved by such enactment, because a human subject never knows what s/he actually wants and needs from the ocean of data, created by the non-stop information generation machine. As Kimball indicates, information which the requesters are looking for is always already online, only they do not know where the data is located, because there are too many data records.^[38]

The dilemma is becoming acute due to the super-rapid development of the data generation assemblages (including the internet, smartphones and social media), in which the demarcation of the Symbolic Order is weakened, since the Real (for example, a fabricated identity in the internet which fails to be regulated by law or the moral order) and the Imaginary (a socio-legal identity) start to overlap and merge.^[39] In a society, being controlled by the internet network and construction of Big/Open Data, human subjects and society are re/codified, and are ‘bound to a continuous time flow that has no beginning or end, no boundaries, a time unbound’.^[40] In such an infospace, where there is no structural beginning and ending, an innovative mode of identities, chaotic and conflicting, can be indefinitely multiplied and reproduced. Not only can a straight male be becoming a trans lesbian within a digital network, a human subject, even after submitting herself/himself completely to the privacy protection law, may not perform or behave accordingly in the universe of the internet (for example, conducting online human flesh searches). By the same token, can information be properly and legally defined, when there are conflicting and multiple meanings?

The identity re-constitution machine in data regeneration assemblages cannot work without jouissance.^[41] Because of jouissance, netizens, even when they are very aware of the importance of privacy protection (part of the Symbolic Order), are ‘instructed’ to post self-related information (for example, a real-time selfie) on the web and/or to respond as soon as possible to all information s/he receives, no matter whether s/he really enjoys it, so as not to be ignored, and thus to manufacture her/his subjectivity.^[42] In order to reconfirm one’s personhood, s/he needs to keep on posting self-related information, and the more responses s/he can get the more secure is her/his subjecthood. The natural consequence is the creation of more and more data and information; the loop never stops. Jouissance, using the same machinic process and logic, further ‘instructs’ people to enjoy codifying themselves, collecting and analyzing the generated data, and fantasising, that is the machinic process of constituting personhood (for example, the more credit cards and mileage cards one has, the greater financial advantages one can enjoy). This pleasure is then followed by the painful experience of re-protecting private data and reserving and revising digitalised information (for example, a public authority, for the sake of effective access, would have to use more and more digital formats when archiving data. In Hong Kong, the Government is currently using 15 different formats).^[43]

Due to the jouissance, people still cannot have the de facto right to make any free decisions (for example, responding to messages), even if the Consultation Paper and related recommendations are accepted and a new piece of FOI law is enacted. The proposal and the related law could not stop people from further intensively digitalising themselves, reducing themselves into different codes, and consequently making themselves available for public manipulation. So, they will need to further rely on the law to dig out and collect more self-related information. The process of requesting and collecting only creates more information (with a further re-structuring and representation of existing data), and the cycle starts again. People understand very well that simply legislating a piece of FOI law cannot absolutely guarantee limitless freedom of information and effective public governance, yet they would (again by jouissance be instructed to) believe that such a piece of law is necessary and essential.

The proposal, suggested by the Consultation Paper, while providing clearer guidelines and better pseudo-protection, in short, cannot go beyond the virtual binarism of freedom to information and effective public control, but sutures the two seeming-to-be-conflicting concepts, and creates a more comprehensive socio-legal control of human subjects.

According to Žižek, ‘injustice derives from the problem that everyone has to submit herself/himself to the Big Others, and cannot return to herself/himself’.^[44] A possibility for constructing a new Master Signifier is thus becoming essential – it can be constructed by a Žižekian act, that is initiated, ironically, also by jouissance, by which the impotence of the Symbolic Order and fantasy are exposed - according to Lacan and Žižek^[45] A Žižekian act does not aim at total destruction of the existing Symbolic Order, it only ‘does the impossible within the existing order’^[46] (emphasis original). Only when there is a new Master Signifier can current jouissance stop (though another jouissance inevitably starts).

The new Master Signifier, in FOI politics, should be able to challenge the existing Fantasy (including enhancement of transparency and accountability of public authority, and greater public participation of policy making). Why do the advocates of FOI believe getting better access to information owned by public authorities would encourage public participation in public decision-making? It is simply because they firmly believe that when people can know more (because the information is no longer controlled by only a few institutions) they will participate more. Getting access to information without owning it is definitely replacing and challenging the traditional capitalist concept of ownership, by the concept of control (for example, the ability to manipulate real-time data).^[47] However, making a request for access only means production of more information, since every request is particular and each response and related report may have to be tailor-made corresponding to different requests under different contexts. The more information one creates and controls (or is instructed to create, own, get access to and use), the more powerless one is becoming. This is because, given the fast and non-stop growing of data volume, it will be increasingly difficult for an individual human subject to control the data, for example, the ability to develop the capacity and ability to filter and analyze the data s/he does not need/want, and reserve and archive the data s/he really needs. Another example is: the more data-mining a human subject conducts through the internet, the more digital footprints s/he will create and leave in the digital media. S/he will be easily and unconsciously manipulated by the social media or data analysts.^[48] The jouissance of producing data now evolves into the jouissance of making access to information, but the ending is the same: if it is the machine of data generation that creates and controls human subjects, the machine only grows stronger and more powerful with the better right of freedom of information/access to information.

A Zizekian act and the resulting new Master Signifier should help us to understand that control/manipulation of information no longer means enhancement of power and the formation of human subject, but ‘disposal of information’. Not exposing the information may not mean the perpetual maintenance of information, but accessing, owning and archiving as much information as one (institution) can/should is also becoming impossible. In the matrix of the internet and technological control, where the explosion in the quantity of information happens due to the weakening of the Symbolic Order and the merging of the Imaginary and the Real, it is the disposal of information that rules. As Agamben writes:

[O]peration of power...does not immediately affect what humans can do...but rather their ‘impotentiality’, that is what they cannot do, or better, cannot do.^[49]

In short, it is not the more information one can gather and control that can help enhance the constitution of a more powerful personhood that can make better decisions, but de-informationisation, where a human subject can strike off the unconscious control of data regeneration assemblages.

In an infospace, deinformatisationisation – starting with a choice of not being digitalised (as discussed above), followed by a choice not to desire seeking or owning any information – is the strategy in which a new Master Signifier can be manufactured. We should not indulge ourselves anymore in searching and collecting (and responding to) more information, but should (1) dispose of information that we owned (without leaving any digital footprints, going beyond the existing right to be forgotten); and (2) stop creating more information by blocking, critically and meticulously, the currently unlimited flow of, access to and creation of information and data. Human subjects should then expend more effort on learning and developing skills to analyze and select, and to archive the data and information.^[50]

As argued elsewhere, law and related politics are products of particular socio-cultural machines. There is a vacuum in the Consultation Paper as it does not discuss existing FOI Laws in Mainland China and Taiwan (as parts of Greater China) and the connection between FOI Law and local Han-Chinese civilization. In this section, the dialogue between the politics of FOI Law and an influential Han-Chinese traditional school of thought, Daoism, will be critically investigated

According to Lao Zi 老子, commonly believed to be the founder of Daoism (a school of philosophy developed in Imperial China), Dao, which simultaneously contains the binary poles of Being 有and Nothing 無, is the metaphysical origin of the universe.^[51] Being and Nothing are not an oppositional dichotomy, contrarily, their interaction creates everything.^[52] The manufacturing process never ends due to the mechanism of Reversion 反.^[53] Lao Zi describes in detail how the process works:

The Dao produced One; One produced Two; Two produced Three; Three produced All things. All things leave behind them the Obscurity (out of which they have come), and go forward to embrace the Brightness (into which they have emerged), while they are harmonised by the Breath of Vacancy.^[54]

The Being and Nothing polar system, which works under Reversion, leads to the development of the famous Actionless principle 無為. The actionless principle does not mean doing nothing or no action. As Lee 李增 interprets, The actionless principle contains a (hidden) element of Action 有為so both Actionless and Action (like Being and Nothing) are two sides of the same coin.^[55] Actionless hence means that human subjects should not do anything with self-centred desire and calculation. For example, human subjects should not enact any law simply because they want to legislate, or fill up a vacuum. Human subjects should also not make any law for the sake of enhancing their power of control. It never means human subjects should not make any new law, but a piece of law should be enacted only with the desire to enhance the public good, that is, Dao.^[56] Also, a state-ruling authority should not, by making law, excessively or unnecessarily (according to the principle of Reversion) interfere with the livelihood and freedom enjoyed by multitude.^[57] If the regime of control is too strong, it will swing to the other end to keep harmony and peace (ie the multitude would request more freedom). Simply put, Law (of any kind, including the future possible FOI Law) and its corresponding mechanisms cannot be over-complicated:^[58] ‘[i]n the kingdom the multiplication of prohibitive enactments increases the poverty of the people’.^[59] So, we can ask: given the experience and expertise in investigating cases and complaints, would the Ombudsman,^[60] after extending its orbit of authority and power (as proposed by the Consultation Paper), be a more effective agency (when compared to any existing institution and a possible new agency) responsible for administering the future FOI Law? If that is the case, should the number of public bodies under the respective control of the FOI law and the Ombudsman be identical to maintain consistency? After taking into account the current shortage of judges, we can also ask whether it would hinder the enactment of the FOI Law if we insisted on the establishment of a specialised FOI tribunal.^[61] Hence, the actionless principle does not mean creating no law, but formulating law that would not fulfill self-interests and should not disturb Dao (ie the well-being of public life):

In a little state with a small population, I would so order it, that, though there were individuals with the abilities of ten or a hundred men, there should be no employment of them; I would make the people, while looking on death as a grievous thing, yet not remove [themselves] elsewhere (to avoid it).

Though they had boats and carriages, they should have no occasion to ride in them; though they had buff coats and sharp weapons, they should have no occasion to don or use them.

I would make the people return to the use of knotted cords (instead of written characters).

They should think their (coarse) food sweet; their (plain) clothes beautiful; their (poor) dwellings places of rest; and their common (simple) ways sources of enjoyment.

There should be a neighbouring state within sight, and the voices of the fowls and dogs should be heard all the way from it to us, but I would make the people [in relation] to old age, even to death, not have any intercourse with it.^[62]

When analysing the Consultation Paper and the future FOI Law from this perspective, we can understand that conflicting ideas or interests are not naturally oppositional or binary, and can create positive and productive results. People who support increasing the number of exemptions can always negotiate with the camp which advocates the strengthening and extension of Freedom/Right to Information. The way is to follow the Actionless principle – the law and the related mechanism should not be too complicated or too relaxed. The key value that underlies the discussion and negotiation must not be self-centred or self-restraint – Law should not be made to promote any self-interest. The proposed FOI law, in this context, should be and could be taken and utilised as a platform where different public/state needs can be satisfied to go beyond possible conflicts. The exemptions, and executive and judicial mechanisms, stated in the Consultation Paper, if agreed and respected by all stakeholders, can assist the fulfilment of the desire to improve the lives of the multitude. No party should and could then abuse these rights and duties, given and regulated by the possible FOI Law, and we could then develop and derive an etiquette for exercising the rights and duties imposed by the new possible law (for example, no vexatious or unreasonable requests for information/ data).^[63] With better etiquette, and more sophisticated management, the costs of application are always negotiable.

Then the next question is: why is there self-centred desire? The substances, including human and biological organs, created by Dao, are differential but interconnected – that explains how a society and human body are constituted from a Daoist perspective. Since Dao means the multitude and multiplicities^[64] during the formation of human and humanity, Dao assigns human the Dao-related Morality 德. The assignment is not a passive process, human beings have to assume a proactive role – s/he has to ‘learn’ 知 (including memorising and being enlightened by) the morality through her/his own Mind (心). Here is the dilemma: body (where Mind is attached) can be confused and constrained by the five senses created by the organs (ie eyes, ears, tongue, nose and body) and biological desires of a common sense world. As there are differences among human beings (for example, age, race, gender and background), and each human subject may be influenced to a different extent by individual biological desires and senses, there can be different notions of morality.^[65]

As Zhuang Zi 莊子, another significant and influential Daoist philosopher, further elaborates: Mind, that is always free at the start, can connect freely with other human subjects. However, once a Mind rigidly connects with a particular Body, human subjects start to be becoming stubborn and over-insistent; in other words, different Fixed Minds 成見之心 (ie 成心) grow and develop.^[66] According to Wang王邦雄, Fixed Minds is the source of all sorts of conflict, since a person with Fixed Minds will always take her/his perspective as the universal and monolithic standard, and instructs others to comply,^[67] thus creating different kinds of hierarchal discrimination and suppression.

Zhuang Zi then advocates the idea of Selfless 無我 (ie elimination of rigid limitations and fixed boundaries). Human beings should not be restricted by artificial demarcations, and immerse again with Dao; only through doing so, Fixed Minds would disappear. As Wang 王邦雄 explains: selfless means that human subjects should not rely and depend too much on material worlds. Therefore, we can ask, in the discursive machine of the Consultation Paper and FOI politics: would (re)producing too many data records and over-digitalisation of human subjects – vital parts of the common sense world, intensively create more Fixed Minds? Would an obsession with protecting/ seeking more data/information reproduce a Fixed Mind, and thus prevent human subjects from (re)engaging with each other and Dao? Should human subjects, due to the self-centered desire to create and enjoy an easier and convenient lifestyle, rely excessively on the data generation machine and suffocate themselves with increasing amounts of data/information? Should we learn not to construct our happy life on the foundation of too much data/information?^[68] Although Daoism may not have devised a sophisticated and practical strategy in which self-determination can be realised, it certainly would not oppose the policies formulated by the Deleuzeans and Zizekians and would provide a philosophical platform – Chang’s zone of proximity^[69] -- whereby Deleuzean deterritorialisation and Zizekian traverse of Fantasy could be translated into Han-Chinese civilization (all three schools of thought agree there is no philosophical transcendence). This would mean that the strategy of deinformationisation could grow and be applied and implemented in Hong Kong, a predominantly Han-Chinese society.

The paper does not intend to oppose the introduction of a FOI Law in Hong Kong or the recommendations in the Consultation Paper (including the exemptions and using the Ombudsman as the institution overseeing the exercise of future FOI Law). Before we engage the strategy of deinformationisation, a FOI Law (together with the proposed Archive Law) and related legal machines in Hong Kong are necessary to improve public governance and strengthen freedom of speech. What is argued in this paper is that a piece of new legislation, or even stricter privacy protection/requirement of consent, together with well-trained politicians and officials who wholeheartedly support the new regime, cannot guarantee Freedom of Information as people have invariably imagined and expected. It is suggested that in order to avoid the over-generation of data and further digitalisation of the (in)dividual, and the remanufacturing of self-determination and justice, law has to facilitate the avoidance of the over-digitalisation of human subjects – and this means not only the right to be forgotten, but the choice of not to be part of the Big/Open Data generating machine.

The ‘downside’ of adopting deinformationisation will certainly be the compromise of daily life conveniences brought about by technological advancement. Imagine a way of life where e-payment platforms would all disappear; the choice is again ours – should we sacrifice self-determination and submit ourselves to the non-stop information/data generation machine? If we are not yet ready to challenge the human-centric humanities studies, where human subjectivity becoming is still an ongoing negotiation which involves social norms and values, including data re-generation, deinformationisation is an effective way to resist the rapid and natural deterioration of self-determination. Otherwise, when the becoming of human subjectivity is technologically mediated^[70] – where re-generation of data is becoming an essential part of human subjectivity becoming, or humans are becoming data-becoming (ie humans are just part of data), should we then have to rethink and redefine ‘self-determination’ and autonomy (which are still human-centric concepts)?

^[∗] Distinguished Professor and Advisor to the Law Dean, HangZhou Normal University, PR China. Professor Chiu was a member of the JCU Law Review Editorial Board in 2005-06 when he was a member of the JCU Law School’s teaching staff.

^[1] The organization is established under to the Ombudsman Ordinance (Cap 397, LHK), in order to investigate maladministration of certain public institutions. For details, see section 2 of the Ordinance.

^[2] The subcommittee responsible for the issue will hold its last meeting in January 2021; so, it is probable that the final report will not be released earlier than June 2021.

^[3] The Law Reform Commission of Hong Kong, Access to Information (Consultation Paper, December 2018) Chapter 3; See also Strikwerda, Litska, ‘Information Privacy, the Right to Receive Information and [Mobile] ICTs’ (2010) 4(2) Etikk I praksis, Nordic Journal of Applied Ethics 30.

^[5] Hofmann, Herwig, ‘A Critical Assessment of the Relation of Information Freedom and the Protection of Personal Data in Today’s EU Law’ (2017) University of Luxembourg, Law Working Paper Series, Paper No. 2017-009 2.

^[6] Kimball, Michele B, ‘Shining the Light from the Inside: Access Professional’s Perceptions of Government Transparency’ (2012) 17(3) Communications Law & Policy 299.

^[7] Svärd, Proscovia ‘Has the Freedom of Information Act enhanced transparency and the free flow of information in Liberia’ (2018) 34(1) Information Development 20.

^[8] According to Ning, self-determination is a means through which a subject can create her/his own rules of action, and transform herself/himself completely. See Ning, Karl, ‘Contemporary Usage of Medicine and Management of Body’ in Modernity: A Cultural Studies and Applied Philosophy Approach (National Central University, 2017) 84. In other words, a subject has to displace a unified yet imaginary subjectivity and to personalise her/his life style, making it an artpiece. See Nica, Daniel, ‘Nietzsche and Foucault on Self-Creation: Two Different Projects’ (2015) LXIV (1) ANNALS of the University of Bucharest Philosophy Series 33.

^[10] Ownership of information, especially that created online, is becoming an extremely controversial issue; Farkas’s example explains why this issue can be complicated and divisive: ‘Easily, any party involved in creating...new data can substantiate in either commercially exploiting this data or at least in keeping this information a secret or – for private persons such as the user of networked car – to himself. When evaluating who created the data and grants the right to the creator, also many parties are involved to a more or lesser extent. All of the parties mentioned before are involved in the creation of this new data. One could argue that ownership should fall to the party with the clear most interest or who could make the most value out of it. The clear and simple argument against this proposal is that it will be difficult to determine the party with the most interest. When considering the party with the most benefit of owning the data, one could argue that this will be also the party with the biggest financial possibilities, unfairly favouring big enterprises and leaving behind start-ups.’ See Farkas, Thomas, ‘Data Created by the Internet of Things: The New Gold without Ownership’

^[11] Berliner, Daniel, ‘Sunlight or Window Dressing? Local Government Compliance with South Africa’s Promotion of Access to Information Act’ (2017) 30(4) Governance: An International Journal of Policy, Administration, and Institution 642.

^[12] Rosenstock, Eliot (2019) Žižek in the Clinic: A Revolution Proposal For a New Endgame in Psychotherapy (John Hunt, 2019) 9..

^[13] Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998).

^[14]思兼 [SiJian], 《從社會信用體系再探當代的治理策略》[Re-analyzing contemporary strategy of governance from social credit system]
<https://www.hk01.com/%E5%93%B2%E5%AD%B8/277767/%E5%BE%9E%E7%A4%BE%E6%9C%83%E4%BF%A1%E7%94%A8%E9%AB%94%E7%B3%BB-%E5%86%8D%E6%8E%A2%E7%95%B6%E4%BB%A3%E7%9A%84%E6%B2%BB%E7%90%86%E7%AD%96%E7%95%A5-%E6%80%9D%E5%85%BC> (Accessed 25 Oct 2020).

^[15] Braidotti, Rosi, Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (Columbia University Press, 2011) 280-281.

^[16] 張小虹 [Chang, Hsiao-hung],《時尚現代性》[Fashioning Modernity] (Linking Book, 2016) 354.

^[17] Braidotti, Rosi, Nomadic Subjects: Embodiment and Sexual Difference in Contemporary Feminist Theory (Columbia University Press, 2011) 330.

^[19] Braidotti, ‘Feminist Philosophy: Coming of Age’ in Braidotti, Rosi (ed) After Poststructuralism: Transitions and Transformation (Acumen, 2010) 229.

^[20] Bryant, Levi, Difference and Givenness: Deleuze’s Transcendental Empiricism and the Ontology of Immanence (Northwestern University Press, 2008) 58.

^[21] De Bolle ‘Desire and Schizophrenia’ in De Bolle (ed) Deleuze and Psychoanalysis (Leuven University Press, 2010) 8.

^[22] Goodchild, Philip, Deleuze and Guattari: An Introduction to the Politics of Desire (Sage, 1996) 74.

^[25] Holland, Eugene, Deleuze and Guattari’s Anti-Oedipus Introduction to Schizoanalysis (Routledge, 1996) 93.

^[26] Schuster, Aaron, The Trouble with Pleasure: Deleuze and Psychoanalysis (The MIT Press, 2016) 93.

^[27] Joshua Wong, a renowned social activist in Hong Kong, once publicly asked for a quicker enactment of a FOI Law, assuming that would assist him in digging out more details in relation to the Handover of Hong Kong in 1997. See 黃之鋒籲英政府解封港前途密件本地欠《資訊法》難查找<https://hk.news.appledaily.com/local/realtime/article/20180205/57796398>. (Accessed 25 Oct 2020) Why there is such a Fantasy will be further explored in the next section.

^[28] Fountain, Jane, Building the Virtual State (Brookings Institution Press, 2011).

^[32] In NT 1 and NT 2 v Google and the Information Commissioner [2018] EWHC 799 (QB), Mr. Justice Warby, while recognising the legal status of the right to be forgotten, emphasised that it should be decided with reference to particular facts of particular cases and affected public policies (including freedom of speech and information), and that it is not a complete right. That is, in the context of internet searches, the right to be forgotten simply means a delist order of a specified URL, whereby that specified URL will not return in response to any search with the claimant’s name only. See also Art 17 of GDPR.

^[33] According to a report published on 29 April 2018, even a record that had been deleted by Tencent (the holding company of WeChat) could still be retraced. See《紀委吹噓可提取被刪聊天記錄微信：公司不留存記錄，但內地有工具可恢復手機被刪資料》

<https://thestandnews.com/china/%E7%B4%80%E5%A7%94%E5%90%B9%E5%99%93%E5%8F%AF%E6%8F%90%E5%8F%96%E8%A2%AB%E5%88%AA%E8%81%8A%E5%A4%A9%E8%A8%98%E9%8C%84-%E5%BE%AE%E4%BF%A1-%E5%85%AC%E5%8F%B8%E4%B8%8D%E7%95%99%E5%AD%98%E8%A8%98%E9%8C%84-%E4%BD%86%E5%85%A7%E5%9C%B0%E6%9C%89%E5%B7%A5%E5%85%B7%E5%8F%AF%E6%81%A2%E5%BE%A9%E6%89%8B%E6%A9%9F%E8%A2%AB%E5%88%AA%E8%B3%87%E6%96%99/＞ (Accessed 25 Oct 2020).

^[34] As Sharpe and Boucher write: Žižek argues that humans’ beliefs, like our desires and affects, are shaped to a far greater extent than we consciously recognise by our suppositions about what others believe and enjoy.’ (emphasis original). Sharpe, Matthew and Boucher, Geoff (2010) Žižek and Politics: A Critical Introduction (Edinburgh University Press, 2010) 53.

^[35] Turner, Kirk, ‘Lacan’s Fantasy: The Birth of the Clinical Concept’ (2017) 11(2) International Journal of Zižek Studies 1-18.

^[36] See Sharpe & Boucher (n 34) 51. Jouissance is the product of following and obeying a dominant ideology (eg heterosexist patriarchy), ‘where things go too far, where pleasure turns into pain, as an unbearable excessive pleasure’. Parker (2004, 61) Žižek argues that the death drive, the ‘blind, indestructible insistence of libido’ that makes humans enjoy non-stop repetition of painful experience, forbids them from fully immersing themselves into the common sense world: ‘[death drive] designates a blind persistence which follows its path with utter disregard for the requirements of our concrete life-world.’ (Žižek, Slavoj Parallax View (The MIT Press, 2006a); Žižek, Slavoj (2008a) For They Know Not What They Do: Enjoyment as a Political Factor (Verso, 2008a).

^[39] Žižek, Slavoj The Universal Exception (Bloomsbury, 2014) 213; Žižek, Slavoj Incontinence of the Void (MIT Press, 2017) 128; Rosenstock, Eliot Žižek in the Clinic: A Revolution Proposal For a New Endgame in Psychotherapy (John Hunt., 2019) 13.

^[40] Sadowski, Jathan & Pasquale, Frank ‘The Spectrum of Control: A Social Theory of the Smart City’ University of Maryland Francis King Carey School of Law Legal Studies Research Paper 2015-16 < https://digitalcommons.law.umaryland.edu/fac_pubs/1541/ >. (Accessed 25 Oct 2020)

^[41] Rickert, Thomas, Acts of Enjoyment: Rhetoric, Žižek, and the Return of the Subject (University of Pittsburgh Press, 2007) 62

^[42] According to a poll conducted by the Hong Kong Paediatric Society and the Hong Kong Paediatric Foundation, approximately 44% of teenagers in Hong Kong feel despair if they have not posted enough information on the internet, and 26% said they would be disappointed if they fail to attract enough ‘likes’. (‘Nearly half of Hong Kong youngsters feel ‘despair’ if they don’t have something to post on Facebook, WhatsApp or Instagram, study suggests’ <https://www.scmp.com/print/news/hong-kong/health-environment/article/2156363/nearly-half-hong-kong-youngsters-feel-despair-if> (Accessed 25 Oct 2020).

^[43] Scott Edmunds ‘OD for Research’, presentation conducted in ‘Unlocking the Value of Open Data Conference’, organised by the Social Sciences Research Centre, University of Hong Kong, 9 June 2018.

^[44] Chiu, Man-chung, ‘Deterritorialising Sexuality, Act(less)ing Justice’ in CHIU, Man-chung (ed) ‘Resisting and Reproducing: Reconstructing the matrix of sexual politics in Greater China and Singapore’ Reconstruction (2015) 15.2.

^[45]Chen, Jian 陳劍, From Ideology to Moral Law (從意識形態到道德法), JiNan University Press, 2019, 83.

^[46] Devenney, Mark ‘Žižek’s Passion for the Real’ in Paul Bowman and Richard Stamp, The Truth of Žižek, (Continuum, 2007) 64-81.

^[47] Kilius, Zilvinas, ‘Forget ownership, focus on access’ <https://hackernoon.com/forget-ownership-focus-on-access-bc3420a6caef>.

^[51] 王澤應 [Wang, Ze-ying] 《自然與道德——道家倫理道德精粹》 [ZiRan Yu DaoDe] (HuNan University Pres, 2003) 83-130. Dao is nothing, so it does not have a rigid shape or appearance, and at the same time, it is being, as it is the source of everything that has a format and configuration.

^[52] 李增 [Lee, Tseng] 《老子道之哲學》 [Dao Philosophy of Lao Zi] (Tonsan, 2010) 103.

^[53] 王慶節 [Wang, Qing-jie] 《解釋學、海德格與儒道今釋》 [Heidegger and a Hermeneutical Interpretation of Confucianism and Daoism] ( RenMin University Press, 2004) 217.

^[56] 夏海 [Xia, Hai], 《老子與哲學》[Lao Zi and Philosophy] (Joint Publishing, 2016) 136.

^[58] 費小兵 [Fei, Xiao-bing],《<老子>法觀念探微》[Research on Lao Zi’s Legal Perspective] (University of Politics and Law Press, 2013) 166.

^[60] The Ombudsman is established under the Ombudsman Ordinance (Hong Kong) cap 397. It aims to investigate, impartially, maladministration in the public sector.

^[61] Scott Edmounds, an executive committee member at Open Data Hong Kong, requested the establishment of a neutral commission for the enforcement of a future FOI Law.

<https://www.scmp.com/comment/insight-opinion/hong-kong/article/2187435/why-hong-kongs-proposed-freedom-information-law > (Accessed 25 Oct 2020)

^[62] Original: 小國寡民，使有什佰之器而不用，使民重死而不遠徙，雖有舟輿，無所乘之。雖有甲兵，無所陳之。使民復結繩而用之。甘其食，美其服，安其居，樂其俗，鄰國相望，雞，狗之聲相聞，民至老死不相往來. See 《老子》 [Lao Zi], para. 80 https://ctext.org/dao-de-jing/ens (Accessed 25 Oct 2020).

^[64] 王邦雄 [Wang, Bang-xiong],《莊子七講》[Seven Lectures on Chuang Zi] (YuanLiou, 2016) 224-225.

^[69] According to Chang, the zone of proximity is an area where transcultural articulation – cultural transplantation – can take place. See 張小虹 [Chang, Hsiao-hung], (n 12).