Surveillance Capitalism:
The term surveillance capitalism marks the change from data subjects to data objects.
Consumerism and Access:
Smythe argued that theorists in the late 1970s failed to develop an analysis of the commodification of the communications industry and its links with consumerism. [1] This was an important part of the economy’s value that was missed at the time.
Part of the modern economy is a consumer need to purchase things. Without this, the capitalist regime fails. To feed this need, advertisements are key.
Nowadays, content is used as bait: it is free to consume at the cost of advertisement. The TV networks are not selling airtime to advertisers, but access to a demographic. Therefore, audiences are a commodity. The same is true of websites.
‘Data is the new oil. Like oil, data is valuable, but if unrefined it cannot really be used.’ [2]
Consumption as Communication:
Our relationship to a product / brand is, in part, what the brand tells us, but mostly how it makes us feel. Brands wants to know how we feel to advertise to us.
‘The substance of brand value lies in consumer attention. It is what consumers think of or do with the brand that is the source of its value… To some extent, consumer attention can be produced by means of advertising, design and brand management. But is generally recognized that, in the end, valuable consumer attention is the outcome of a social communication process which retains a degree of autonomy’ [3]
Attention Economy:
Due to the rise of the internet, we have become active consumers of content, rather than passive ones. We are therefore unpaid labourers of giant tech firms.
‘You do two jobs for Facebook. You generate data and produce content. Facebook is essentially an advertising company, and every bit of information you disclose is data advertisers can use to influence how and what you buy. Sometimes it's fairly benign (maybe you do want that Blue Apron subscription). Other times it's not. Data is a powerful tool for anyone who wants to shape your behaviour, and as Cambridge Analytica shows, it can be dangerous.’ [4]
‘The prosumer is actually more akin to a silkworm, producing a cocoon of silk that is harvested and recombinated by the social media platform owner to sell to advertisers as a multicolored marketing dreamcoat of networked information. Thus the law applies to the personal data trails of the worms in question: all Internet users’. [5]
‘If you are not paying for it, you’re not the customer; you’re the product being sold.’ [6]
Surveillance Capitalism:
A data-self corresponds with the physical-self. The data-self is extracted by companies to advertise to the physical-self.
‘Surveillance capitalism was being invented between 2000 and 2002, and it was being applied at Google. Here's something interesting: 2002, a comprehensive review of telemedicine, written that year before anyone knew about surveillance capitalism, because Google kept it quite a secret. So here's this comprehensive review, and there are data scientists and engineers involved in this review, and the review includes a diagram for a proposed digital architecture of telemedicine. And that diagram is a simple closed loop. It includes three nodes — one is the patient in her home, one is her physician and the other is the hospital where the server is located. The whole idea here is that a person's health data ... that is the essential elemental property of the person. My body, my information.’ [7]
Advertising Platforms:
Google pioneered this field by recording the searches of everyone using the engine. This created a knowable market that could anticipate the next actions of the physical-self. This user information can also further extracted to provide personalisation and customisation to keep the user engaged.
The user fabricates their own data-self. The system then uses the social connections between users to monopolise on user attention and predict desires to push individualised advertising.
Facebook employs a similar strategy. Similarly to Google, as Facebook has grown, its user reliance on the platform on it has grown too.
Zuboff's Views [8]:
‘Big data, I argue, is not a technology or an inevitable technology effect. It is not an autonomous process, as [Google] would have us think. It originates in the social, and it is there that we must find it and know it.’
‘Big data is above all the foundational component in a deeply intentional and highly consequential new logic of accumulation that I call surveillance capitalism. This new form of information capitalism aims to predict and modify human behaviour as a means to produce revenue and market control.’
Big data are constituted by capturing small data from individuals’ computer-mediated actions and utterances in their pursuit of effective life.
Nothing is too trivial or ephemeral for this harvesting: Facebook ‘likes,’ Google searches, emails, texts, photos, songs, and videos, location, communication patterns, networks, purchases, movements, every click, misspelled word, page view, and more.
‘Such data are acquired, datafied, abstracted, aggregated, analyzed, packaged, sold, further analyzed and sold again.’
‘Their revenues depend upon data assets appropriated through ubiquitous automated operations. These constitute a new asset class: surveillance assets.’
‘Critics of surveillance capitalism might characterize such assets as ‘stolen goods’ or ‘contraband’ as they were taken, not given, and do not produce… appropriate reciprocities.’
‘These surveillance assets attract significant investment that can be called surveillance capital.’
‘Surveillance capitalism establishes a new form of power in which contract and the rule of law are supplanted by the rewards and punishments of a new kind of invisible hand.’
‘The work of surveillance, it appears, is not to erode privacy rights but rather to redistribute them. Instead of many people having some privacy rights, these rights have been concentrated within the surveillance regime.’
Property Rights in Personal Data:
Generally, there is no ownership in personal data, but a right to privacy (data protection). This is a privacy right, not property right: a right to control how our data is gathered, stored, processed and used. This is done within a regulated framework. [9]
Source in Law (in the EU):
Privacy law in the EU can be derived from ECHR Art 8 (Right to Respect for Private and Family Life).
This has subsequently been developed by EUCFR Art 8: ‘Everyone has the right to the protection of personal data concerning him or her’. Data must also be ‘processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.’
Current Data Protection Laws in Different Jurisdictions:
Rights-Based Regime:
Recognition that personal data processing has risks for fundamental rights.
Gives rights to individuals.
Independent enforcement of legal regulatory framework.
EG: EU’s GDPR, Convention 108+
Market-Orientated Model:
Premised on the idea of data being an asset and liberalisation as desirable.
Heavily reliant on market-based mechanisms: notice and consent, transparency, discretionary enforcement, guidelines.
Property in Data:
Data Protection vs Data Property Models:
Complex chains of data make large data sets. This makes it extremely difficult to identify data controllers, processors and third parties. It is these large data sets that are valuable, not the individual data.
Individuals generally do not exercise their data rights. Many of us simply click 'accept' without further investigation. This means there is little incentive for companies who collect big data to actually adhere to the rules. Changing to a data property model would not necessarily change this attitude.
As a fundamental right, data protection cannot be alienated, waived or sold in exchange for compensation. A property approach would enable commodification in a system where one party has substantially more knowledge about the value of the commodity being sold.
Advantages of Property Rights Approach:
Empowers individual.
Encourages better data management policies.
Clarifies responsibilities of actors in the data processing change.
Intuitive terminology.
Economically efficient.
Limits of Property Rights Approach:
Hard to quantify value, and thus compensate.
Data may be co-owned – questionable how this would be dealt with.
Regulation would still be necessary to manage information sale asymmetry.
Enforcement would remain an issue.
If there was a Data Property Market, Whose Property would it be?
The Data Subject:
It seems intuitive that if the data subject can be identified from the data, they should be the owner. This would mark a shift from data subject to data owner.
However, individual data is mixed with metadata. In a Lockean sense, it is the data collector and processor that labours on the data to make it valuable, not the data subject. If Locke’s theory is applied, it could be said that it is not the data subject that would be the owner.
Group Data [10]:
Datasets rarely store data about an individual person. The datasets contain the connections between multiple data subjects, which is extremely hard to extract the individual from. To give one subject ownership would exclude the other subjects from ownership, thus having a negative autonomy effect. Ideas of property individuate data where it ought to be communal.
If data were a property, it would have to be a community property. This would not necessarily be an improvement over the current system, or desirable.
Resources:
References:
[1] Dallas Smythe, ‘Communications: Blindspot of Western Marxism’ (1977) Canadian Journal of Political and Society Theory 1(3) 1–28
[2] Clive Humby (Creator of Tesco Clubcard) [3] Adam Arvidsson [4] Casey Williams, ‘Forget data. Free labor is Facebook’s lifeblood.’ Mashable (26th March 2018) [5] Chris Marsden, ‘Prosumer law and network platform regulation: the long view towards creating OffData’ (2018) Georgetown Law Technology Review 2(2) 376-398 [6] Andrew Lewis (aka blue_beetle) [7] Shoshana Zuboff, ‘How Tracking and Selling Our Data Became a Business Model’ (Interview with WBUR Radio) [8] S Zuboff, ‘Big other: surveillance capitalism and the prospects of an information civilization’ (2015) [9] Regulator: Information Commissioners Office [10] Nadezhda Purtova, ‘Do property rights in personal data make sense after the big data turn: Individual control and transparency’ (2017) 10 Journal of Law and Economic Regulation 64-78
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