Law in the Internet Society
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Data as a self-determined good in the context of social media

-- By CharlotteBerg - 15 Oct 2023

What if Google send a paycheck to its users?


In 2015, the former CEO of Google, Eric Schmidt, predicted that “the internet will disappear. There will be so many IP addresses… so many devices, sensors, things that you are wearing that […] you won’t even sense it. It will be part of your presence all the time” (Zuboff, p. 197). Schmidt however was not describing a vanishing of the internet but rather the phenomenon of ubiquitous computing where those technologies become indistinguishable from everyday life. Distinctive for the services that those technologies are offering is their “free-of-charge” which will tempt users to pay with their personal information, feeding algorithms and essentially enabling companies to analyze their behavior for the establishment of new markets, exploiting the user’s unconsciousness in most cases.

Infringed Rights

Firstly, in this regard, one must take a look at possible infringed rights, which are divided into individual and social rights. The most prominent infringed right appears to be the right of informational self-determination, which is the authority of the individual to decide themselves when and within what limits information about their private life is communicated to others. Unique to the current situation are the extension and the depth of the new methods of data collecting: The devices capture every aspect of the individuum’s life, them getting up in the morning, going to work, their preferred room temperature etc. Even more, data on an unexpected level of intimacy are processed: Sensors in smartwatches notice an elevated heartrate when talking to a love interest, algorithms identify the time we spend looking at a conversation with another person on a messaging program, analyzing feelings the individuum themselves might not even be aware of (Zuboff, p. 199 f). Under these circumstances awareness of communication of data to third parties is impossible. But apart from individual rights, these types of data collection also pose a threat to society, as the study of behavior of whole populations lead to a loss of autonomy. With advancing monitoring and surveillance, every trace of behavior can be translated into information which can be used to steer the actions of billions of people.

The Importance of Choosing

Even though the image of mankind’s future is painted out very darkly and one would be intrigued to countermove with a collective solution, one must not forget that free people must be free to make their own decision, even if this decision is bad for them and they suffer the consequences. Therefore, the very Kantian answer to the question of how to meet the dangers arising from a ubiquitous society must be sapere aude, the courage to use one’s own reasoning. Hence, the goal should be to enlighten the subjects to ubiquitous computing of its dangers and enabling them to make a self-determined choice on steering of their personal information.

Possible Solutions

Regulation (Legislative Approach)

One approach to ensure the consumer’s choice on the handling of their own data appears to be restrictive regulation. The European Union has been taking regulatory approaches that reflect into digital culture worldwide and has implemented a regulatory imperialism as Anu Bradford rightly pointed out (Europe’s Digital Constitution, p 55 f.) Whereas the regulations are manifold, I would like to highlight two in this particular context: the GDPR and the Digital Service Directive. The first one protects the data subject by allowing the data-processing only on certain legal bases, one being the individual’s consent, the later one regards personal data as consideration in regards to contract law. Whereas regulation is a suitable mechanism to steer human’s behavior, the respective regulations can be criticized in many aspects: The fines for non-compliance are too low (although they have significantly risen lately), so big corporations would rather pay fines then complying. But perception of personal data in legal culture has changed: The Digital Service Directive considers personal information as a consideration in the case of a digital contract. This gives the user the right to conformity of the service as well as the right for remedy, if the service is not supplied (Art. 5, 11). Putting a legal value on personal data sends the right message, however the impact of remedies for non-compliance in the field of services that depend on a perfect provision is questionable. The company’s motivation to provide the service perfectly is intrinsic to begin with.

Scholarship (Social Approach)

Another approach could be the enlightening of users and the hope that they would recognize their endangered rights and act accordingly. This rather idealistic approach ignores the unwillingness of the human being to step out of its comfort zone: Modern technology has provided the individual with countless ways to simplify their lives which (almost) no-one is willing to give up. Even more, this approach ignores the nature of the human being as a social being: Interaction happens on social networks, the more the individual feels excluded by non-participation. Summed up, this approach does not promise any success since no-one should be forced to learn (and consequently act accordingly to) certain ideologies.

Financial Compensation (Market Approach)

One rather neoliberalist approach could be to acknowledge personal information as a good and monetarily compensate its use. In a capitalistic system, money works as a catalysator that might be able to visualize the (literal) high price the individual pays for the provision of their data. And valuable goods are generally handled with more care. Furthermore, especially on the aspect of infringed rights, financial compensation could lead to more economic fairness between cooperation’s and consumers. And lastly, a system of compensation combined with an easily accessible enforcement system such as class actions could lead to a significant remodeling of the current use of data as such a compensation would have a high impact on the companies’ budget: If every American was entitled to just $ 1000 compensation annually for the processing of their data, this would lead to a yearly remedy of 334 billion dollar. It seems as this amount might be able to reduce right-infringing processing.

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r3 - 29 Feb 2024 - 02:56:27 - CharlotteBerg
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